Restricting the Marketing of Junk Food to Children by Product

Transcription

Loyola Marymount University and Loyola Law School
Digital Commons at Loyola Marymount
University and Loyola Law School
Loyola of Los Angeles Law Review
Law Reviews
5-1-2006
Restricting the Marketing of Junk Food to Children
by Product Placement and Character Selling
Angela J. Campbell
Recommended Citation
Angela J. Campbell, Restricting the Marketing of Junk Food to Children by Product Placement and Character Selling, 39 Loy. L.A. L. Rev.
447 (2006).
Available at: http://digitalcommons.lmu.edu/llr/vol39/iss1/13
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RESTRICTING THE MARKETING OF JUNK
FOOD TO CHILDREN BY PRODUCT
PLACEMENT AND CHARACTER SELLING
Angela J. Campbell*
I. INTRODUCTION
This Article argues that certain marketing practicesspecifically product placements and the use of popular characters to
promote products-are deceptive when used to market to children. It
argues that such practices should therefore be prohibited by federal
law and further, that such a law is consistent with the First
Amendment.
Parts II and III describe the practices of product placement and
spokes-character marketing and the limited extent to which these
practices have been regulated. Because these forms of marketing are
increasingly being used to market junk foods to children, and
because the federal regulatory agencies have done little to stop these
practices, Part V concludes that legislation restricting product
placement and character marketing to children is needed. To
determine whether such legislation would be constitutional, Part V
summarizes and applies the leading Supreme Court commercial
speech cases.
After reviewing research on whether product
placement and character marketing are deceptive, it concludes that
the Supreme Court will likely find the proposed legislation
constitutional under the first prong of the CentralHudson test, which
permits the prohibition of misleading or deceptive commercial
speech.' Part V further argues that legislation prohibiting product
* Professor of Law, Georgetown University Law Center. Professor
Campbell thanks Natalie Smith for her excellent research assistance, Russell
Sullivan for pointing out examples of product placement, and David Vladeck,
Dale Kunkel, Jennifer Prime, and Marvin Ammori for their helpful
suggestions.
1. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557,
448
LOYOLA OF LOS ANGELES LAW REVIEW
[Vol. 39:447
placement and character marketing to children would be consistent
with the concerns underlying the commercial speech doctrine,
because its effects would be limited primarily to children and
because it would limit only certain forms of advertising that lack
significant informational value. Part VI addresses how such
legislation would contribute to the reduction of childhood obesity,
and Part VII examines whether such legislation would be workable.
II. PRODUCT PLACEMENTS
"Product placement is a form of promotion in which advertisers
insert branded products into programming in exchange for fees or
other consideration.",2 Product placement takes three basic forms:
(1) visual, i.e., where a product, logo, or sign is shown; (2) auditory,
i.e., where the product is mentioned; or (3) where the product is used
or plays a role in the program.3 Although product placement has
been used for 4decades, it has become much more prevalent in the
past few years.
563 (1980).
2. Letter from Mary K. Engle, Assoc. Dir. for Adver. Practices, Fed. Trade
Comm'n [FTC], to Gary Ruskin, Exec. Dir., Commercial Alert (Feb. 10,
2005), http://www.ftc.gov/os/closings/staff/050210productplacemen.pdf.
3. See Matthew Savare, Where Madison Avenue Meets Hollywood and
Vine: The Business, Legal, and Creative Ramifications ofProductPlacements,
11 UCLA ENT. L. REV. 331, 356 (2004). The placement of AOL in the movie
You've Got Mail is an example of the third category. See John A. McCarty,
Product Placement: The Nature of the Practice and Potential Avenues of
Inquiry, in THE PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE
LINES BETWEEN ENTERTAINMENT AND PERSUASION 45, 47 (L.J. Shrum ed.,
2004). Reality television shows, in particular, have been able to incorporate
products into the storyline. For example, "entire episodes [of The Apprentice]
have been built around Procter & Gamble Co.'s Crest Refreshing Vanilla Mint
toothpaste, Levi Strauss & Co. denim jeans and Pepsi-Cola North America's
Pepsi Edge." Meg James, ProductsAre Stars in New Ad Strategy, L.A. TIMES,
Dec. 2, 2004, at C 1. A recent example is the starring role to be played by Levi
jeans in the Warner Brothers film based on the book, The Sisterhood of the
Traveling Pants. See Matthew Creamer, Sisterhood of the Traveling Pants a
Good FitforLevi's, MADISON & VINE, June 15, 2005, http://www.adage.com/
MadisonandVine (subscription required).
4. The practice of product placement in the movies began in the 1940s.
McCarty, supra note 3, at 46. However, it was the phenomenal success of the
1982 placement of Reese's Pieces in the film E. T. that is credited for
increasing advertiseis' interest in product placement. See, e.g., Savare, supra
note 3, at 333. The increased use of product placement in television was
fueled by the success of Junior Mints' placement in Seinfeld. Sharmistha Law
May 20061
RESTRICTING JUNK FOOD MARKETING
A. The Practiceof ProductPlacement
Product placement has become big business. The amount of
money spent on product placement increased from $190 million in
1974 to $3.458 billion in 2004. 5 From 1999 to 2004, the overall
product placement market grew at a compound annual rate of
in 2005 is expected to increase
16.3%.6 Productplacement spending
7
22.7%, to a total of $4.24 billion.
Today, "there is a conscious and coordinated effort on the part
of content creators, production companies, studios, marketers, and
manufacturers to integrate products into entertainment programming
Over one
in a systematic, efficient and persuasive manner."
hundred specialized advertising agencies are devoted to product
placement. 9 Several different services have been developed to
measure product placement impact.' 0 Most movie and TV studios
One study found that as
have product placement departments."
many as fifteen branded products appear in every half hour of
network programming and that 40% of these are product
placements. 12
& Kathryn A. Braun-LaTour, Product Placements: How to Measure their
Impact, in THE PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE
LINES BETWEEN ENTERTAINMENT AND PERSUASION, supra note 3, at 63, 63.
5. PQ MEDIA LLC, PRODUCT PLACEMENT SPENDING IN MEDIA 2005:
EXECUTIVE SUMMARY 6 (2005).
6. Id.
7. Id. at 8.
8. Savare, supra note 3, at 334.
9. JULIET B. SCHOR, BORN TO BUY: THE COMMERCIALIZED CHILD AND
THE NEW CONSUMER CULTURE 78
(2004).
10. Nielsen Product Placement Service catalogs and counts all visual and
audio references to products during prime time entertainment programming on
the six major TV networks and reports how many viewers were watching the
program at the time of the product mention or appearance. Anna Heinemann,
TNS Launches Product-PlacementMeasuring Service, ADAGE.COM, June 21,
2005, http://www.adage.com/search.cms (search "heinemann") (subscription
required). In June 2005, TNS Media Intelligence launched its Branded
Entertainment Reporting Service. Id. TAG Research offers In-Program
Performance, yet another service for measuring the impact of product
placement. Id. CinemaScore is used to calculate placement fees for product
placements in movies. See Law & Braun-LaTour, supra note 4, at 66.
11. Law & Braun-LaTour, supra note 4, at 64.
12. Id. (citing R.J. Avery & R. Ferraro, Verisimilitude or Advertising?
BrandAppearances.on Prime-Time Television, 34 J. CONSUMER AFF. 217, 217
(2000)).
[Vol. 39:447
Analysts have posited many reasons for the increase in product
placement. Sharmistha Law and Kathryn Braun-LaTour summarize
the advantages of product placement:
Practically, placements appear to be a good deal for
manufacturers: They often cost less than traditional
advertising, appear in a low clutter environment, appeal to a
worldwide audience, get recycled with the program, imply a
celebrity endorser, and are in an optimal environment where
consumers are captive to the product's placement (no
remotes!). 13
Moonhee Yang and Beverly and David Roskos-Ewoldsen note
that placing products in movies or television programs allows
advertisers to target very specific audiences.14 Furthermore, product
placements have a longer life than traditional commercials since
movies can remain popular for many years, are often shown on
15
television and are available for sale or rental on tape or DVD.
Likewise, television programs are often rerun and increasingly may
be available on DVD.
Namita Bhatnagar, Lerzan Aksoy and Selin Malkoc note the
advantages of product placement over both unpaid publicity and
traditional advertising: product placement is superior to free publicity
because it gives the sponsor control over the message, while, at the
same time, it is also superior to traditional advertising in that
"[p]laced messages, which are paid for but do not identify the
message sponsor, have the potential to overcome consumers'
skepticism toward advertisements."' 6 Yang and Roskos-Esoldsen
note that audiences are less skeptical and more receptive because
product placement is not perceived as an advertisement. 17 John
McCarty also notes that traditional advertising messages are
interpreted in the context of the awareness that advertising is
13. Law & Braun-LaTour, supra note 4, at 64.
14. See Moonhee Yang et al., Mental Modelsfor Brand Placement,in THE
PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE LINES BETWEEN
ENTERTAINMENT AND PERSUASION, supra note 3, at 79, 80-81.
15. Seeid. at81.
16. Namita Bhatnagar et al., Embedding Brands within Media Content: The
Impact of Message, Media and Consumer Characteristics on Placement
Efficacy, in THE PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE
LINES BETWEEN ENTERTAINMENT AND PERSUASION, supra note 3, at 99, 104.
17. See Yang et al., supra note 14, at 81.
May 2006]
RESTRICTING JUNK FOODMARKETING
persuasive communication, and that normal skepticism is reduced
when viewers see a product in the context of a story.18 He concludes
in
that "a good product placement may be one that fits with the story
'9
such a way as to make us forget that it is there to persuade us."'
Product placement is also seen as a response to new
technologies that allows consumers to avoid watching traditional
advertisements on television. An article in the New York Times
describes the goal of product placement as "regain[ing] the attention
of consumers who can avoid advertising by using digital video
recorders, satellite radio and digital juke boxes." 20 Digital video
recorders (DVRs) such as TiVo, and remote controls allow viewers
to skip over traditional advertisements. A study by Media Planning
Group "found that 90% of people with DVRs skip commercials in
recorded programming-and just 16% watch the ads when viewing
21
live TV, rather than doing something else or channel hopping.
We can expect to see even more product placement in the future.
CBS Chairman Les Moonves recently told investors to expect "a
quantum leap in the number of products integrated into your
television shows this year." 22 AdAge reports that "a growing
number of marketers want to persuade the nation's print magazines
23
to open the text :of their editorial pages to product placements."
And a PQ Media Special Report notes that "[t]o compensate for
[advertisers'] perception of diminished advertising returns" from
traditional television spot advertising, "marketers have substantially
ratcheted up the role of product placement in their buying
strategies.... And this is a trend we expect to continue in the
18. See McCarty, supra note 3, at 49-50.
19. Id. at 50-51. See also Letter from Gary Ruskin, Exec. Dir., Commercial Alert, to Donald Clark, Sec'y, FTC, (Sept. 30, 2003) (on file with
Commercial Alert) ("advertisers have found embedded ads to be effective,
precisely because viewers are off guard").
20. Stuart Elliot, More Products Get Roles in Shows, and Marketers
Wonder if They're Getting Their Money's Worth, N.Y. TIMES, Mar. 29, 2005,
at C3.
21. Theresa Howard, Product Placement in TV Shows Moves Out of
Background,USA TODAY, Oct. 14, 2004, at B3.
22. John M. Higgins, Moonves: Preparefor PlugsAplenty, BROADCASTING
June 13, 2005, at 4.
23. Jon Fine, Marketers Pressfor Product Placement in Magazine Text:
& CABLE,
Callfor End of Strict SeparationBetween Advertising and Editorial Content,
ADAGE.COM, Apr. 12, 2004, http://www.adage.com (subscription required).
[Vol. 39:447
foreseeable future., 2 4
Product placement is common in children's movies. For
example, Walt Disney Pictures' Herbie: Fully Loaded has been
described as "a product-placement movie gone wild. 25 In SpiderMan, Spider-Man uses his web-spinning power to retrieve a Dr.
Pepper. 6 Other recent examples of children's movies with paid
product placement include Madagascar (Coca-Cola, Denny's),
Scooby-Doo 2 (Burger King, Gatorade), Fantastic Four (Burger
King, Pepsi, Kool-Aid, Mountain Dew, Oscar Meyer), and SpiderMan 2 (Dr. Pepper, Fritos, Pop-Tarts).27
Product placements are also common in television programs that
children watch. 28 American Idol, in which the judges sip Coca-Cola,
is one of the most commonly cited examples. 2 9 Another example is
the appearance of Canada Dry vending machines (which do not
actually exist) on Buffy the Vampire Slayer.30 NBC's American
Dreams, another top show among child viewers, featured Campbell's
24. PQ MEDIA LLC, supra note 5, at 5.
25. Ross Johnson, ProductPlacementfor the Whole Family, N.Y. TIMES,
July 6, 2005, at E5 (describing one of many product placements: "The only
time Ms. Lohan/Peyton touches food or drink is when she pulls a prominently
displayed bottle of Tropicana orange juice from a kitchen refrigerator. In a
scene 20 minutes later, Maggie enters the kitchen growling at another
character, 'If you touched that orange juice, I'll kill you."').
26. CTR. FOR SCI. IN THE PUB. INTEREST, PESTERING PARENTS: How FOOD
COMPANIES MARKET OBESITY TO CHILDREN (2003), available at
http://cspinet.org/new/pdf/pagesfrompesteringjparentsfinalpt1 .pdf.
27. See Brand Channel Films, http://www.brandchannel.com/brandcameo
films.asp (last visited Oct. 22, 2005). This Web site notes that some
children's movies also feature brands as a joke. See id. For example, the site
describes Shrek 2: "While free of 'real' brands, this land of make believe does
make fun. From Olde Knavery and Versarchery to Farbucks coffee, Baskin
Robinhood and Burger Prince, many jokes require knowledge of non-fairytale
brands." Id.(follow "2004" hyperlink). "See also Kokogiak, http://www
.kokogiak.com (last visited Oct. 22, 2005) (documenting product tie-ins with
the movies The Cat in the Hat, The Incredibles, and The Hulk).
28. Teens are also targeted by product placements. See, e.g., Abbey
Klaassen, MTV Changes Strategy to Embrace ProductIntegration, MADISON
& VINE, July 11, 2005, http://www.adage.com/MadisonandVine/ (describing
how Domino's Pizza, Burger King, Coca-Cola and others are integrating
brands into MTV programming) (subscription required).
29. See, e.g., Katherine Neer, How ProductPlacement Works, http://money
.howstuffworks.com/product-placement.htm (last visited Oct. 22, 2005).
30. CTR. FOR SCI. IN THE PUB. INTEREST, supra note 26, at 21.
May 2006]
tomato soup in nine episodes during the 2004-05 season. 31 The
daughter on the 1960s era drama entered a Campbell's-sponsored32
essay contest and the family ate a large quantity of tomato soup.
Cans of Campbell's tomato soup are also seen "in the kitchen, in
commercials on a black-and-white TV, and in the hands of a young
artist visiting a c6llege campus." 33 Meet Mister Mom, a reality show
that began airing on NBC in the summer of 2005, in which dads
compete to run the most efficient household, was actually produced
by an advertising
agency specifically for the purpose of promoting
34
products.
Product placement is not limited to movies and television.
Some Web sites targeting children and teens also carry product
placements. For example, the Neopets Web site, which claims to
have twenty-five million mostly "tween-aged" visitors, 35 allows
children to create and care for a pet by purchasing food, toys, and
medicines using "Neopoints," which are obtained bypaying games,
visiting stores on the site, and completing surveys.
A child may
visit the McDonald's shop or the Disney Theater on the Neopets
site.37 Once at the McDonald's shop, children can play games and
win McDonald's French fries for their neopet 3 8 The Habbo Hotel
site, "a teen-targeted animated Web world where users can play
games, chat and customize characters and rooms," has integrated39 a
number of brands into its site, including Pepsi and Mountain Dew.
31. Beth Gillin, Product Placement Turns TV Programsinto Commercials,
PHILA. INQUIRER, Jan. 23, 2005, at Al.
32. Id.
33. Id.
34. See Tara Weiss, Advertiser's Television, J. NEWS, Aug. 19, 2005,
available at http://www.thejoumalnews.com/apps/pbcs.dll/article?AID=/205
0816/BUSINESS/508160367/1066 (log-in required).
35. See Hilary Potekewitz, Big Media Paying Big to Find Kids, L.A. Bus.
J., Aug. 1, 2005, at 1.
36. See Welcome to Neopets!, http://www.neopets.com (last visited Oct.
22, 2005) (log-in required). Neopets is an interesting example of both product
placement and character marketing, as the Neopets characters have also been
included in McDonald's Happy Meals.
37. See Neopets McDonald's
Page,
http://www.neopets.com
(follow
"shops" hyperlink; then follow "McDonald's shop" hyperlink (last visited Oct.
24, 2005); Neopets Disney Theatre, http://www.neopets.com (follow "shops"
hyperlink; then follow "Disney Theatre" hyperlink (last visited Oct. 24, 2005).
38. See Neopets McDonald's Page, supra note 37.'
39. T.L. Stanley, Online Habbo Hotel Targets U.S. High-Schoolers,
[Vol. 39:447
Video games are likely to become another important venue for
product placement targeting children and teens. Samsung, which has
prominent product placement in the movie The Fantastic Four, has
also entered into an agreement with video game maker Activision to
integrate its brand and products into the video game for the movie.40
Massive, an advertising agency, is placing products in computer and
video games for such advertisers as Dunkin' Donuts and CocaCola.4 1 According to Massive's CEO, "[a]dvertising is seamlessly
integrated into games [and] takes many forms: billboards, posters,
branded messages on delivery trucks and computer and TV
screens. ' 42
Massive uses technology that allows different
advertisements to
be inserted depending on time of day, geography,
43
or other factors.
Product placement is also turning up in other, less-expected
places. In recent years, a number of counting and activity books for
44
very young children have featured branded snack foods and cereals.
McDonalds recently hired a marketing firm to encourage hip-hop
artists to integrate the Big Mac into their songs.45
& VINE, Feb. 2, 2005, http://www.adage.com/MadisonandVine
(subscription required).
MADISON
40. Beth Synder Bulik, Samsung Reloaded is Back in the Movie Game,
June 28, 2005, http://www.adage.com/MadisonandVine
MADISON & VINE,
41. See Matt Richtel, A New Reality in Video Games: Advertisements, N.Y.
TIMES,
Apr. 11, 2005, at C1.
42. T.L. Stanley, Making a Game ofMarketing, MADISON & VINE, May 18,
2005,
http://www.adage.com/MadisonandVine
Massive reaches the core gamer population, which consists of over seventy
percent of males ages eighteen to thirty-four. Id.Children in the U.S. spend
an average of forty-nine minutes per day playing video games. DONALD F.
ROBERTS ET AL., THE HENRY J. KAISER FAMILY FOUND., GENERATION M:
MEDIA IN THE LIvES OF 8-18 YEAR OLDS 31 (2005).
43. Stanley, supra note 42. This technology also allows advertisers to
monitor the behavior of the gamers. Id.For a discussion of the deal between
Nike and Take-Two Interactive Software to cross-promote Nike shoes and the
basketball videogame NBA 2K6, see also Marc Graser, Nike Ramps Up VideoGame Product Placements, ADAGE.COM, Sept. 28, 2005, available at
http://www.adage.com (subscription required). The game will also feature
Nestle's energy bars and Gatorade signage on the sidelines. Id.
44. See SCHOR, supra note 9, at 78-79.
45. Marc Graser, McDonald's Buying Way into Hip-Hop Song Lyrics,
MADISON & VINE, Mar. 28, 2005, http://www.adage.com/MadisonandVine
(subscription required). McDonald's will pay a certain amount for each time a
May 2006]
A substantial number of the products placed in children's media
are foods of low nutritional value. 46 PQ Media found that "marketers
in the food & beverage, house & home, and health & beauty
categoriesmen,,47
account for more than half of all physical product
placements [in 2004].
Food or beverage ?roducts frequently
appear in the top-ten lists of product placements.8 Additionally, the
recent report by the Institute of Medicine titled "Food Marketing to
Children and Youth: Threat or Opportunity?" found that marketers
increasingly employed product placement, across multiple forms of
media, to market food and beverages to children and youth.49
B. The Regulation of ProductPlacement
Product placements have been largely unregulated except for
those that appear on broadcast television or radio, which is regulated
to a limited extent by the Federal Communications Commission
(FCC). Section 317 of the Communications Act requires that
television and radio stations make on air disclosures of product
placements. 50 the FCC has explained the rationale underlying
song is played on the radio. Id.This article notes that radio airplay not only
extends the reach of the brand, but "[i]f a song is getting a lot of airplay,
there's a strong likelihood it will be played in clubs, be downloaded, be turned
into a ringtone and sell more CDs." Id.
(quoting Tony Rome, President-CEO,
of Maven Strategies).
46. See CTR. FOR SC. IN THE PUB. INTEREST, supra note 26, at 10.
47. PQ MEDIA LLC, supra note 5, at 7.
48. See, e.g., LAG Top 10 Most-Recalled Product Placements in Network
Sitcoms, Feb. 14-Mar. 13, 2005, MADISON & VINE, Mar. 16, 2005, http://
www.adage.com/MadisonandVine (subscription required) (Hostess's Twinkie
in NBC's Scrubs ranked second); Nielsen Product Placement Report: Coke
Classic Tops List for Week of May 9-15, 2005, MADISON & VINE, June 1,
2005, http://www.adage.com/MadisonandVine (subscription required) (CocaCola Classic appeared 111 times; PepsiCo's Gatorade ranked second with 92
appearances, and Sierra Mist ranked seventh with 54 appearances).
49. COMM. ON FOOD MKTG. & THE DIETS OF CHILDREN & YOUTH, INST. OF
MED., FOOD MARKETING TO CHILDREN AND YOUTH: THREAT OR OPPORTUNITY? 162-67 (J. Michael McGinnis et al. eds., The National Academies
Press 2006), available at http://www.nap.edu/books/0309097134/html/R1
.html.
50. 47 U.S.C. § -317 (2000). Disclosure is generally required whenever a
station broadcasts matter in exchange for "any money, service or other
valuable consideration." Id.§ 317(a)(1). Section 508 requires that any person
who supplies a program to a broadcast station shall disclose whether payment
has been made for the inclusion of any program matter. Id. § 508. In cases of
456
[Vol. 39:447
Section 317 is that "an advertiser would have an unfair advantage
over listeners if they could not differentiate between the program and
the commercial message and were, therefore, unable to take its paid
status into consideration in assessing the message." 5' The non-profit
group, Commercial Alert, has alleged that television networks have
not complied with Section 317's disclosure requirements for product
placement. 52 Commercial Alert calls on the FCC to investigate
current product placement practices and to update its rules to address
these practices.5 3
Although Commercial Alert's request for
investigation has been pending for over two years, the FCC has taken
no action in response.5F
The FCC also prohibits product placement in programs
originally produced and broadcast primarily for children ages twelve
and under.55 In 1971, the FCC initiated a wide-ranging inquiry into
children's programming and advertising practices at the request of
Action for Children's Television (ACT).
This inquiry resulted in
the issuance of the 1974 Children's Television Report and Policy
Statement. 7 While the FCC declined ACT's request to eliminate all
commercials on programs designed for children and to prohibit any
other use or mention of any product by brand name, it nonetheless
such disclosure, Section 317(b) requires stations to make an announcement
regarding the payment. Id. § 317(b). In addition, station licensees are required
to "exercise reasonable diligence" to obtain the information they need to make
an appropriate announcement. Id. at § 317(c). The FCC rules implementing
this statute may be found at 47 C.F.R. § 73.1212 (2004).
51. Children's Television Report and Policy Statement, 50 F.C.C.2d 1, 15
(1974) [hereinafter Children's Television Report] (citing Hearing on H.R.
5589 Before the H. Comm. on the Merchant Marine and Fisheries, 69th Cong.
83 (1926)).
52. Letter from Gary Ruskin, Exec. Dir., Commercial Alert, to Marlene H.
Hortch, Sec'y, FCC (Sept. 30, 2003) (on file with Commercial Alert).
Commercial Alert is a non-profit organization whose "mission is to keep the
commercial culture within its proper sphere, and to prevent it from exploiting
children."
CommercialAlert, http://www.commercialalert.org (last visited
Nov. 12, 2005).
53. Letter from Gary Ruskin, supra note 52, at 1.
54. FCC Commissioner Jonathan Adelstein has urged the FCC to act on
this and other related matters. See, e.g., Jonathan S. Adelstein, Comm'r, FCC,
Remarks at the Media Institute 6 (May 25, 2005) (transcript available at
http://hraunfoss.fcc.gov/edocspublic/attachmatch/doc-258962A 1.pdf).
55. See Children's Television Report, supranote 5 1, at 1.
56. Id.
57. Id.
May 2006]
457
adopted some important restrictions in implementing its statutory
responsibility to "insure that broadcasters
do not engage in excessive
58
or abusive advertising practices."
The 1974 Policy Statement did not explicitly address the
practice of product placement, but it did express concern that many
broadcasters were not maintaining adequate separation between9
5
programming and advertising on programs designed for children.
Thus, the FCC adopted a policy requiring a clear separation between
program and commercial content, the effect of which is to prohibit
product placement in programs originally designed and aired for
children aged twelve and under. 60 However, the FCC policies do not
apply to "programs originally produced for a general audience that
might nevertheless be significantly viewed by children." 6 ' This
explains why television programs that large numbers of children
watch, such as American Idol, are allowed to contain product
placements (although they should be disclosed). Moreover, FCC
rules exempt motion pictures that are shown on television from its
disclosure requirements. 62 While the FCC has extended children's
advertising policies to cover children's programming on cable
television and direct broadcast satellites, 63 it lacks the jurisdiction to
regulate product placement in motion pictures, video games,
64
magazines, songs, and books.
In contrast to the FCC, the Federal Trade Commission (FTC)
has broad jurisdiction over advertising practices regardless of the
medium.6 5 However, in 1992, the FTC declined to take any action
against product placement in movies. 66 More recently, the FTC staff
58. Id. at 8-9.
59. Id. at 14.
60. Id. at 15.
61. Policies and Rules Concerning Children's Television, 6 F.C.C.R. 2111,
2112 (1991).
62. 47 C.F.R. § 73.1212(h) (2004).
63. 47 U.S.C. § 303a(d) (2000) (applying advertising limits to cable
television operators); In re Implementation of Section 25 of the Cable
Television Consumer Protection and Competition Act of 1992, 19 F.C.C.R.
5647, 5668 (2004) (MM Docket No. 93-25) (applying advertising limits to
direct broadcasting satellites).
64. See infra note 149 and accompanying text.
65. See Federal Trade Commission Act § 5, 15 U.S.C. § 45(a)(1) (2000).
66. See Press Release, FTC, FTC Denies CSC's Petition to Promulgate
Rule on Product Placement in Movies (Dec. 11, 1992), available at http://www
[Vol. 39:447
denied a request by Commercial
Alert to investigate product
67
television.
on
practices
placement
Commercial Alert documented that product placement has
grown in scope, sophistication and intensity, and argued that use of
product placement is "deceptive because it flies under the viewer's
skeptical radar. It is unfair because it is advertising that purports to
be something else." 68 Commercial Alert alleged the failure to
disclose embedded advertising was deceptive or unfair under the
meaning of the Federal Trade Commission Act. 69 To support this
argument, Commercial Alert cited numerous cases in which the FTC
had required marketers to disclose that advertising appearing to be
something else, such as a television program, newspaper article, or
Internet search result, was really a paid advertisement. 70 While the
bulk of Commercial Alert's request focused on product placement in
general, it expressed concern that embedded advertisements could
get "past the guard" of watchful parents and "trigger cravings" for
products that parents might oppose, such as junk food.7 '
Commercial Alert cited several examples of product placements for
soda, fast food,
and even beer in programs watched by large numbers
72
children.
of
In February 2005, the FTC's Associate Director for Advertising
Practices denied Commercial Alert's request to require greater
disclosure of product placement. 73 As to adult viewers, the letter
.ftc.gov/opa/predaw /F93/CSC-petit5.htm. In 1991, the Center for the Study
of Commercialism and others asked the FTC to prevent the use of product
placement in movies unless otherwise disclosed at the beginning of such films
containing them. Id. The FTC denied the petition, concluding that "[d]ue to
the apparent lack of a pervasive pattern of deception and substantial consumer
injury attributable to product placements... an industry-wide rulemaking is
inappropriate at this time." Id.
67. See Engle, supra note 2.
68. Letter from Gary Ruskin, supra note 19, at 2.
69. Id.
70. See id. at 2-3.
71. Id.at 12.
72. See id. at 12-13. Commercial Alert also noted that the fast food
company Taco Bell had entered into a brand integration deal with Discovery
Networks, which operates several cable networks with a substantial child
audience. Id. at 13. (citing Hank Kim, Madison & Vine: Discovery, Taco Bell
Sign Ad Pact, ADVERTISINGAGE, Sept. 16, 2002, at <START PAGE>, or
available at http://www.adage.com (subscription required)).
73. Engle, supra note 2.
May 2006]
459
stated that the FTC's staff was not aware of any empirical data about
whether consumers distinguish between paid and non-paid product
appearances. 74 Even assuming, however, that consumers are not
aware of paid appearances, the letter concluded without a formal
determination as to whether the failure to identify paid product
placements as advertising violated Section 5 of the Federal Trade
Commission Act.75 It explained that the principal reason to identify
something as an advertisement is that consumers may give more
credence to representations about a product's performance or other
attributes if they are made by an independent third party, rather than
an advertiser.76 It cites as an example, JS&A Group, Inc., 7 which
concerned an infomercial for BluBlocker sunglasses that appeared to
be an independent news program. 78 In contrast,
in product placement, few objective claims appear to be
made about the product's performance or attributes. That
is, in most instances the product appears on-screen (e.g.,
American Idol hosts are seen drinking from cups with the
Coca Cola logo), or is mentioned, but the product's
performance is not discussed.79
Thus, the FTC staff8 0letter concluded that the rationale for
disclosure was absent.
The FTC siaff applied the same reasoning to Commercial
Alert's request for investigation of product placement seen by
children. 8 1 The FTC noted that because of children's special
vulnerabilities, it examined whether an advertisement was deceptive
from the standpoint of an "ordinary child., 82 Nonetheless, "[i]f no
objective claims are made for the product, then there is no claim as to
which greater credence could be given; therefore, even from an
ordinary child's standpoint, consumer injury from an undisclosed
74. See id. at2.
75. Id. at 5-6.
76. Id. at 2.
77. See In re UJS&A Group, Inc., 111 F.T.C. 522 (1989) (discussing
consent order).
78. Letter from Mary K. Engle, supranote 2, at 2-3.
79. Id. at 3.
80. Id.
81. Id. at 4-5.
82. Id. at 4.
460
[Vol. 39:447
paid product placement seems unlikely."8 3
In sum, although advertisers have used product placement for
many years and have increased their usage substantially in recent
years, federal agencies have failed to restrict it or ensure it is not
deceptive or misleading.
III. CHARACTER MARKETING
Characters have been used to market products for over a
hundred years. 84 'Some characters associated with certain products or
brands have been developed by the advertiser specifically to promote
their products. 85 Examples of this type include Chester Cheetah,
Tony the Tiger, and Ronald McDonald. Advertisers have also
employed other characters that appeared first in children's books,
movies, television shows, and video games to market unrelated
products, which are often food products. 86 Researchers refer to this
type of character marketing as "celebrity spokes-characters." 87 An
example of a celebrity spokes-character is SpongeBob Square Pants,
a character from a popular children's program on Nickelodeon, who
appears on the packaging for a wide variety of food products
83. Id.While denying Commercial Alert's request, the FTC staff noted the
FTC would continue its policy of evaluating whether an advertising format is
deceptive on a case-by-case basis, and to the extent that specific uses of
product placement could be demonstrated to likely cause consumer injury, the
FTC could bring enforcement actions. Id. at 5.
84. Judith A. Garretson & Ronald W. Niedrich, Spokes-Characters:
CreatingCharacterTrust and Positive BrandAttitudes, 33 J. ADVERTISING 25,
25 (2004).
85. Id.
86. Margaret F. Callcott & Wei-Na Lee, A Content Analysis of Animation
and Animated Spokes-Characters in Television Commercial, 23
J.
ADVERTISING 1, 11 (1994).
87. See Garretson & Niedrich, supranote 84, at 25-36. This article defines
"spokes-characters" as "nonhuman characters used to promote a product or a
brand." Id. Non-celebrity characters "aren't cartoons originally created for
animated movies, cartoon programs, and/or comic strips and then licensed by
brands to appear in promotions. Rather, they are created for the sole purpose
of promoting a product or brand." Id. at 25. Another article uses the term "celebrity spokes-characters" to refer to spokes-characters of a non-advertising
origin that can be licensed to endorse products. Callcott & Lee, supra note 86,
at 2. Similarly, the Institute of Medicine uses the term "character merchandising" to refer to the licensing of popular fictional characters to promote the
sale of products. COMM. ON FOOD MKTG. & THE DIETS OF CHILDREN &
YOUTH, supra note 49, at 147.
May 2006]
including Kellogg's cereal, Cheez-it snack crackers, and Pop-Tarts. 88
Another example is the common practice of fast food restaurants
putting toy characters from popular children's movies into their
children's meals. This Article
proposes limits on the use of such
89
spokes-characters.
celebrity
A. The Practiceof Celebrity Spokes-CharacterMarketing
In most cases, advertisers pay a license fee for the right to use a
popular character as a toy or in an advertisement. Licensing has
become big business.
In 2004, licensing fees in the
entertainment/character category in the United States amounted to
$2.57 billion, a $63 million (2.5 percent) increase over the year 2003
"due in large part to the successful licensing programs for 2004
mega-hits such as Spider-Man 2 and Shrek 2 ."9u
A related practice is cross-selling, in which two or more
companies combine promotion efforts. For example, in 1990, Burger
King promoted the movie Teenage Mutant Ninja Turtles before it
opened and was prominently featured in the movie. 9' Crosslicensing has become a common practice for children's movies.
88. See SpongeBob SquarePants Offers from Kellogg's, http://www
.kelloggs.com/promotions/spongebobsquarepants/limitededitionshtml
(last
visited Nov. 4, 2005).
89. The proposal is limited to celebrity spokes-characters because spokescharacters developed for advertising campaigns generally do not take
advantage of children or pose the same risk of confusion as characters
developed in a book, movie, or television program that are used to market an
unrelated product. See Callcott & Lee, supra note 86. However, even
characters developed for a marketing campaign may be used in an unfair or
deceptive manner. For example, it has been argued that the use of the
character Joe Camel was unfair because it promoted a product to children that
was illegal for them to purchase. See Joel B. Cohen, Playing to Win:
Marketing and Public Policy at Odds over Joe Camel, 19 J. PUB. POL'Y &
MARKETING 155 (2000).
Moreover, in 1992, Fox Television network
considered broadcasting a cartoon program based on Chester Cheetah. Groups
Rap Chester Cheetah Show Idea, ADVERTISINGAGE, Mar. 9, 1992,
http://www.adage.com (subscription required). After Action for Children's
Television and others asked the FCC to declare that the program would violate
its separations policy, Fox decided not to pursue the program. Id.
90. Patricia Odell, Live from the Licensing Show: Royalties Flat,
Entertainment and CharacterLicensing Booming, PROMO XTRA, June 22,
2005, availableat http://promomagazine.com/news/licensing0622/.
91. EDUC. SERVS. DIV., CONSUMERS UNION, SELLING AMERICA'S KIDS:
COMMERCIAL PRESSURES ON KIDS OF THE 90'S (1998), http://www.consumers
union.org/other/sellingkids/license.htm.
LOYOLA OFLOS ANGELES LAW REVIEW
[Vol. 39:447
Dreamworks, which produced the Shrek movies, recently entered
into a two-year global marketing and promotional relationship with
McDonald's that'will enable McDonald's to integrate the characters
from Shrek 3 into its year-round marketing. 92 For the last nine years,
McDonald's has had an exclusive relationship with Disney, "doing a
series of commercials and Happy Meal promotions with Disney
properties like 101 Dalmatians, Finding Nemo and Inspector
Gadget., 93 According to McDonald's President and Chief Operating
some of the
Officer, the tie-ins with Disney movies had been
94
promotions.
Meal
Happy
company's most successful
Spokes-character marketing has also become a common practice
on children's Web sites. The Center for Media Education first
identified the problem of spokes-character marketing to children in
its 1996 report, Web of Deception.95 This report notes that "[i]n the
online world, the [FCC's] no-host [selling] principle is not only
being violated, but hosts are also being used to interact with children
in exploitative new ways." 96 It describes how many children's Web
sites encourage children to interact with spokes-characters and use
97
spokes-characters to promote and even sell products online.
Today, many children's television Web sites have online shops
where one can buy product merchandise associated with the
programs or program characters. 98 Moreover, on many children's
92. See T.L. Stanley & Kate MacArthur, McDonald's Signs Two-Year Deal
with Dreamworks, MADISON & VINE, July 27, 2005, http://www.adage.com/
MadisonandVine (subscription required).
93. Melanie Warner, McDonald's Reaches Deal with Studio, N.Y. TIMES,
July 28, 2005, at C7.
94. Id.
95. CTR. FOR MEDIA EDUC., WEB OF DECEPTION: THREATS TO CHILDREN
FROM ONLINE MARKETING (1996).
96. Id. at 16.
97. See id. at 17.
98. For example, clicking the "shop" button on http://www.nick.com will
take a child to an area selling hundreds of items-games, toys, clothing, home
furnishings-associated with Nickelodeon characters that can be viewed by
program, age, or type of merchandise. See Nick.com Shop, http://shop.nickjr
.com/home/index.jsp (last visited Oct. 13, 2005). Disney, Cartoon Network,
and Sesame Workshop have similar shopping areas on their Web sites.
Disney, http://www.disney.go.com/shop/today/index.html (last visited Oct. 13,
2005); Cartoon Network, http://www.cartoonnetwork.com /shop/index.html
(last visited Oct. 13, 2005); Sesame Workshop, http://www.sesameworkshop
.org/newshop (last visited Oct. 13, 2005).
May 2006]
media Web sites, program characters promote unrelated products
99
using a variety of techniques including banners advertisements,
contests, °0 and advergames.' 0 ' Further, some children's media Web
sites provide children with a direct link to product Web sites. For
example, on the Cartoon Network's Web site, 102 a child may click on
a banner advertisement for Pop-tarts and immediately be sent to a
the movies Robots and
Pop-tarts Web site, where characters from
10 3
boxes.
Pop-tarts
on
featured
are
Wars
Star
Character marketing remains a popular marketing technique in
television commercials as well. As one study notes, "[a]lthough
celebrity characters from Buster Brown to Mickey Mouse to the
Flintstones have endorsed a variety of products throughout adver14
tising history, they have been especially visible in recent years."'
This study analyzed the content of commercials on broadcast and
cable networks.'l ' It found that animated advertisements appeared
most frequently during children's programming and cartoons, more
99. See, e.g., Oppositions to Petitions for Reconsideration of the Children's
Media Policy Coalition at 24 n. 104, In re Children's Television Obligations of
Digital Television Broadcasters, 19 F.C.C.R. 22943 (2004) (MM Docket No.
00-167).
100. For example, the FoxKids Web site invited kids to enter a Teenage
Mutant Ninja Turtle Monster Candy contest co-sponsored by Pez candies.
FoxKids, http://foxkids.com/promotions/tmntmonstercandy/ (last visited Sept.
1, 2005).
101. For example, the Nickelodeon Web site has an advergame promoting
both the SpongeBob SquarePants Movie and several Kellogg's productsSpongeBob Cereal, Cheez-it Crackers, Pop-tarts, and Eggo Waffles. See
Kellogg's Spongebob Games, http://www.nick.com/ads/kelloggs/spongebob/
(last visited Oct. 13, 2005). The site offers two interactive games. In "The
Diner," children have to serve food to hungry customers. Of course, every
customer wants the SpongeBob cereal or other Kellogg's brand featuring
SpongeBob on the package. In the "Kellogg's Supermarket Challenge," the
object is to beat the clock by picking up the Kellogg's products that have been
"dropped" in the Supermarket and put them back where they belong. In
addition, children can win a screen saver by naming one of the four things
represented by the marshmallow pieces in the SpongeBob cereal.
102. Cartoon Network, http://www.cartoonnetwork.com/tvshows/
index.html (last visited Oct. 13, 2005).
103. Kellogg's Pop-Tarts Toaster Pastries, http://www.poptarts.com/
promotions/poptarts/hotnews.html (last visited Oct. 13, 2005).
104. Callcott & Lee, supra note 86, at 2-3.
105. See id. at 3. Of the seven networks studied, i.e., Nickelodeon, Fox,
NBC, MTV, CBS, CNN, and ABC, Nickelodeon had the highest percentage of
animated advertisements. See id. at 5 tbl. 1.
464
LOYOLA OF LOS ANGELES LA WREVIEW
[Vol. 39:447
than half of the animated commercials featured animated characters,
and 27.9 percent of spokes-characters were classified as "celebrity
characters."' 10 6 The study found that the "majority of animated
characters appeared for products in the cereal/fruit/vegetable,
candy/snacks, food/beverage and games/toys categories.' ' 7
Susan Linn has also noted the extensive use of characters to
market food to children:
Most of the movies and many of the TV programs children
watch are marketed with off-screen food promotions. Once
a program is associated with a particular brand, the program
itself becomes an ad for that food. Visit any supermarket
and you'll find shelves filled with examples of these links
between the media and food manufacturers.... Tie-ins like
these are designed to lure children into selecting foods
08
associated with favorite movie or TV characters.1
Even characters from children's programs shown on public
broadcasting stations, such as Sesame Street and Arthur, which are
supposed to provide a non-commercial alternative for children, are
frequently used to promote food products to children. 10 9
The
Institute of Medicine found that "[t]he use of child-oriented licensed
106. Id.at 9 tbl.3. The characters appearing most often were Fred Flintstone
and Barney Rubble. Id.at 10 tbl.4. Interestingly, this study found that animated spokes-characters were also used to promote products to adults. Id. at 6.
107. Id. at 11.
108. SUSAN LINN, CONSUMING KIDS: THE HOSTILE TAKEOVER OF CHILDHOOD 97 (2004); see also CTR. FOR SCI. INTHE PUB. INTEREST, supra note 26,
at 25-26.
109. See LINN, supra note 108, at 97 (describing juice boxes adorned with
characters from Sesame Street); see also SARAH SAMUELS ET AL., THE CAL.
ENDOWMENT, FOOD AND BEVERAGE INDUSTRY MARKETING PRACTICES
AIMED AT CHILDREN: DEVELOPING STRATEGIES FOR PREVENTING OBESITY
AND DIABETES 11 (2003), available at http://www.calendow.org/reference/
publications/pdf/disparities/TCEl 101-2003_FoodandBever.pdf
(picturing
characters from PBS program Arthur on package of Brach's fruit snacks). The
practice of licensing characters from PBS shows has increased substantially in
the last decade. Sep Susan E. Linn & Alvin F. Poussaint, The Trouble with
Teletubbies, AM. PROSPECT, May 1, 1999, at 18. This may be attributed to the
fact that at the 1995 congressional hearings, "Republicans chided PBS for not
benefiting from the huge amount of money Barney, the popular purple
dinosaur, was making for its parent company. Nor did PBS initially get money
from licensing of Sesame Street merchandise." Id. at 21. Subsequently, PBS
renegotiated its deals with the producers of children's programs to share in the
profits from the licensing of these characters. Id.
May 2006]
465
cartoon and other fictional or real-life spokes-characters has been a
prevalent practice used to promote low-nutrient and high-calorie
food and beverage products."' 0
B. The Regulation of Spokes-CharacterMarketing
Like product placements, spokes-character marketing has been
largely unregulated. Only one form of character marketing to
children, known as "host-selling," has been restricted by the FCC
since the mid-1970s."'1 At that time, the two primary methods of
advertising to children were broadcast television and print. 1 2 The
FCC adopted a policy against host-selling, which limited character
13
marketing on television programs in which the character appeared."
The Children's Advertising Review Unit (CARU) of the Bureau for
Better Businesses adopted guidelines restricting character based
marketing in print media." 4 The FTC found the use of a celebrity
spokes-character to be unfair or deceptive in one case in 1977, but
has not brought1 5any actions against character marketing to children
since that time.
1. FCC Regulation of Host-Selling
In its 1974 Policy Statement, the FCC defined "host selling" as
"the use of program characters to promote products. ' ' 1 6 The FCC
found that host-selling took unfair advantage of children in two
ways. First, the interweaving of program and commercial content
exacerbated the difficulty children have distinguishing between the
two. 117 Second, host-selling took "unfair advantage of the trust
which children place in program characters. Even performers
themselves recognize that, since a special relationship tends to
develop between hosts and young children in the audience,
110. COMM. ON FOOD MKTG. & THE DIETS OF CHILDREN & YOUTH, supra
note 49, at 149.
111. See Children's Television Report, supra note 51, at 16.
112. See id.
113. Id. at 16.
114. CHILDREN'S ADVER. REVIEW UNIT, SELF-REGULATORY GUIDELINES
FOR CHILDREN'S ADVERTISING 7 (7th ed. 2003), available at http://www.caru
.org/guidelines/guidelines.pdf (last visited Oct. 24, 2005).
115. See Hudson Pharm. Corp., 89 F.T.C. 82 (1977).
116. Children's Television Report, supra note 51, at 16.
117. Id.
466
[Vol. 39:447
commercial messages are likely to be viewed as advice from a
friend.""'
The Commission limited its prohibition against host-selling to
programs in which the host or character appeared, and to
advertisements during or adjacent to that program."l 9 It did not
prohibit children's program hosts from promoting products in
commercials shown at other times. 120 The FCC noted that "[p]ublic
interest questions may also be raised when program personalities or
characters deliver" commercial messages on programs other than the
ones on which they appear" because it takes advantage of the "trust
relationship which has been developed between the child and the
performer."' 121 However, the FCC was concerned that it "may not be
feasible, as a practical matter, for small stations with limited staffs to
avoid using children's show personnel in commercial messages on
other programs." 122 This reasoning is no longer valid today as
stations rarely produce their own
children's programs or commercial
23
messages using station staff.1
Moreover, most host-selling problems today arise in the context
of animated characters, rather than human hosts. 24 Although the
FCC initially conceived of host-selling as the pitching of products by
human hosts of children's programs, subsequent FCC cases make it
clear that host-selling encompasses promotion of products by
nonhuman and animated characters as well as by human hosts. 125 In
recent years, the FCC has admonished several television stations for
118.
119.
120.
121.
122.
Id.
Id. atn.20.
Id.
Id.
Id.
123. See Museum of Broad. Commc'ns, Children and Television, http://
www.museum.tv/archives/etv/C/htmlC/childrenand/childrenand.htm (last visited Nov. 12, 2005) (stating that "[t]he production of children's programming
is big business").
124. See, e.g., Sandra L. Calvert, Future Faces of Selling to Children, in THE
FACES OF TELEVISUAL MEDIA: TEACHING, VIOLENCE, SELLING TO CHILDREN
347, 356 (Edward L. Palmer et al. eds., 2003).
125. See, e.g., Policies and Rules Concerning Children's Television Programming, 6 F.C.C.R. 5093, 5097 (1991); Dr. Frederick Breitenfeld, Jr.,
President, WHYY, Inc., 7 F.C.C.R. 7123, 7123 (1992) (noting that in an earlier
case it established that "advertisements featuring the same type of animation
that is regularly featured in the accompanying program constitutes hostselling").
May 2006]
26
violating the policy against host-selling.1
In the fall of 2004, the FCC updated its children's' advertising
policies. 127 Among other things, it extended its host-selling policy to
prohibit the display of Web site addresses on children's television
programs (or advertisements during children's programs) when the
Web site uses characters from the program to sell products or
services.' 28 The major children's networks and advertisers have
this change, and have asked the FCC to reconsider
strongly opposed
29
this decision.'
2. CARU Guidelines
The Children's Advertising Review Unit (CARU) is a selfregulatory arm of the National Advertising Review Council, an
organization formed by the Association of National Advertisers,
American Association of Advertising Agencies, American
130
Advertising Federation, and Council of Better Business Bureaus.
It is a private organization funded by the advertising industry, with
no enforcement powers.13
126. See, e.g., In re Gary M. Cocola, 15 F.C.C.R. 9192, 9193 (2000) (noting
that KXVO (TV) was admonished for airing commercials for Post Cereal
Golden Crisp featuring Looney Toon characters during the Warner Brothers
Kids' Block); Paramount Stations Group of Houston, Inc., 13 F.C.C.R. 21816,
21820 (MMB 1998) (finding that broadcasting a commercial for Honey Nut
Cheerios featuring Sonic the Hedgehog during the Sonic the Hedgehog
program violated policy against host-selling).
127. In re Children's Television Obligations of Digital Television Broadcasters, 19 F.C.C.R. 22,943 (2004).
128. Id. at 22,961.
129. In November 2005, Disney and Viacom asked the Court of Appeals to
overturn the FCC's decision. In re Walt Disney Co., No. 05-4498 (6th Cir.
Nov. 29, 2005); Viacom v. FCC, No. 05-4497 (6th Cir. Nov. 29, 2005); see
also Petition for Reconsideration of Nickelodeon, Children's Television
Obligations of Digital Television Broadcasters, MM Docket No. 00-167, at
18-25 (Feb. 2, 2005). In December 2005, the children's networks and
advertisers reached an agreement with children's advocates to jointly propose
changes in the Web site display rules and other children's television rules,
which if ultimately adopted by the FCC on reconsideration, would result in the
withdrawal of the court challenges. John Eggerton, FCC Will Open Kids Deal
for Comment, BROADCASTING & CABLE, MAR. 14,2006 http://www.
broadcastingcable.com/article/CA6315951 ?display=Breaking+News&referral
=SUPP_(last visited Apr. 9 2006).
130. See Children's Advertising Review Unit, http://www.caru.org/about/
index.asp (last visited Oct. 26, 2005).
131. Id.
468
LOYOLA OFLOS ANGELES LA WREVIEW
[Vol. 39:447
The CARU Guidelines address host-selling in a section entitled
"Endorsement and Promotion by Program or Editorial
Characters."' 132 The Guidelines note that "[s]tudies have shown that
the mere appearance of a character with a product can significantly
alter a child's perception of the product. Advertising presentations by
program/editorial characters may hamper a young child's ability to
distinguish between program/editorial content and advertising." The
Guidelines prohibit the use of "[p]rogram personalities, live or
animated" to sell products "in or adjacent to programs primarily
directed to children in which the same personality or character
appears" and also prohibit the advertising of products related to a
children's program during or adjacent to the program. 133 The
Guidelines further advise that "[i]n print media primarily designed
for children, a character or personality associated with the editorial
content of a publication should not be used to sell products,
premiums or services in the same publication."' 134 CARU explains
that this section incorporates the FCC's
proscription against host
135
selling and extends it to print media.
The CARU Guidelines, however, do not prohibit character
selling on children's Web sites. 136 Moreover, they contain 1an
37
exception for "character-driven" or "product-driven" magazines.
This exemption has been interpreted broadly to cover the popular
children's magazine, Nickelodeon. 138 Even where the Guidelines
132. CHILDREN'S ADVER. REVIEW UNIT, supra note 114.
133. Id. at 8.
134. Id. However, in "character driven" or "product driven" magazines or
Web sites, the prohibition against advertising related products does not apply.
Id.
135. MTV Networks Nickelodeon Magazine (Zoey 101) Children's Advertising Review Unit, No. 4293, at 2 (Mar. 9, 2005) (on file with Children's Advertising Review Unit, http://www.caru.org).
136. CHILDREN'S ADVER. REVIEW UNIT, supra note 114, at 8.
137. Id.
138. MTV Networks Nickelodeon Magazine (Zoey 101), No. 4293, at 3.
This exception was intended to exempt magazines such as Barbie, American
Girl and G.1 Joe, which contain material related solely to those characters, on
the theory that children subscribing to those magazines would expect to see
advertising for those characters' products. Id. CARU acknowledges that
Nickelodeon Magazine is not "technically" a product or character-driven
magazine because it contains editorial content that is not solely related to
Nickelodeon characters. Id. Nonetheless, CARU decided to include it within
the exemption. Id.
May 2006]
advise against a particular practice, compliance with its rulings is
purely voluntary.
3. Federal Trade Commission
In one instance, the FTC found that the use of a popular
children's character to market to children is unfair or deceptive.140 in
Hudson PharmaceuticalCorp.,141 the FTC alleged that the company
had "utilize[d] the endorsements of a hero figure, Spider-Man, who
is known for his super-human strength and abilities and has a special
appeal to children" in marketing "Spider-Man Vitamins."' 142 The
FTC explained that Spider-Man had appeared on a popular children's
television program and using a program character in television
advertising that children view has the "capacity to blur for children
the distinction between program content and advertising and to take
advantage of the trust relationship developed between children and
the program character.' 43 Thus, the FTC entered into a consent
decree prohibiting the company from advertising the vitamins to
children.144 Since entering into this consent decree in 1977, the FTC
has taken no further actions involving character marketing to
children.
IV. THE NEED FOR LEGISLATION TO RESTRICT
PRODUCT PLACEMENT AND CHARACTER MARKETING TO CHILDREN
As discussed, advertising agencies increasingly use product
placement and character marketing to target children.145 Moreover,
in many cases, the advertised products are unhealthy foods. 146 For
this reason, further restrictions on these types of advertising to
children could help to solve the problem of childhood obesity and
public health problems associated with obesity.
Legislation is needed to restrict these marketing practices. As
discussed above, neither the federal regulatory agencies nor the self139. Angela J. Campbell, Self-Regulation and the Media, 51 FED. COMM.
L.J. 711, 737 (1999).
140. See Hudson Pharm. Corp., 89 F.T.C. 82, 86 (1977).
141. Id.
142. Id.
143. Id.
144. Id. at 87-88.
145. See supraParts I., II.A.
146. See supranotes 46-48 and accompanying text.
470
[Vol. 39:447
47
regulatory CARU are effectively addressing these problems.
While the FCC should be commended for its recent decision to
extend its host selling prohibition to Web sites advertised on
children's television programs, 48 it appears to lack jurisdiction to
address the bigger problem of character selling on Web sites
generally. 149 Nor does it have jurisdiction over commercial activity
unrelated to broadcasting such as food packaging,
or putting
50
characters in children's meals at fast food restaurants.'
Although the FTC has jurisdiction to address "unfair or
deceptive" marketing and advertising practices in interstate
commerce, 151 it lacks jurisdiction to adopt rules regarding children's
advertising. 152 Moreover, the current FTC Chairman, Deborah
Majoras, has indicated that the FTC does not intend to regulate
children's advertising.15 3 And, as discussed above, a recent FTC
staff letter rejected a request to even investigate
the increasingly
54
prevalent practice of product placements.1
V. WOULD LEGISLATION PROHIBITING PRODUCT PLACEMENT AND
CHARACTER MARKETING TO CHILDREN BE CONSTITUTIONAL?
Although legislation could prohibit product placements in
children's media and character marketing to children, critics will
147. See supra Parts I, II.B.
148. Children's Television Obligations of Digital Television Broadcasters,
19 F.C.C.R. 22,943, 22,943 (2004).
149. See 47 U.S.C. § 151 (2001) (stating that the FCC's jurisdiction is
limited to interstate and foreign communications by means of wire or radio);
see generally Am. Library Ass'n v. FCC, 406 F.3d 689 (D.C. Cir. 2005)
(discussing the scope of the FCC's statutory authority).
150. Id,
151. 15 U.S.C. § 45(a)(1) (2000).
152. Id. § 57a(h). Congress eliminated the FTC's authority to make rules
regarding children's advertising when it enacted the FTC Improvements Act of
1980. Id. See Tracy Westen, Government Regulation of Food Marketing to
Children: The Federal Trade Commission and the Kid-Vid Controversy,
Remarks at the Loyola of Los Angeles Law Review Symposium: Food
Marketing to Children and the Law, 39 LOY. L.A. L. REV.
__
(2006).
153. See Deborah Platt Majoras, Chairman, FTC, Remarks at the Obesity
Liability Conference 9-10 (May 11, 2005) (transcript available at http://www
.ftc.gov/speeches/majoras/05051 lobesityliability.pdf); see also Childhood
Obesity Workshop to Focus on Self-regulation, FTC: WATCH (D.C.), July 11,
2005, at 6 (discussing the FTC's focus on self-regulation).
154. See supra notes 81-83 and accompanying text (discussing Commercial
Alert's FTC Complaint).
May 2006]
undoubtedly object that such legislation would be unconstitutional.
Since a prohibition on product placement and character marketing
would be a restriction on commercial speech, the legislation would
be analyzed under the commercial speech doctrine.
A. The Commercial Speech Doctrine
Until the Supreme Court's 1976 decision in Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 15
courts generally did not accord advertising protection under the First
Amendment.' 56
In deciding to provide some protection to
commercial speech, the Court emphasized the informational value of
advertising for consumers.' 57 The Court was troubled by the
paternalistic assumption of a regulation that deprived the public of
accurate and useful information under the guise of protection.
Instead, courts should assume
that well informed people will act in
58
interests.
best
own
their
At the same time, the Court did not hold that commercial speech
could never be regulated. 5 9 For example, false commercial speech
could be prohibited even though other forms of speech are subject to
a higher degree of protection.160 The Court noted that: "Obviously,
much commercial speech is not provably false, or even wholly false,
but only deceptive or misleading. We foresee no obstacle to a
State's dealing effectively with this problem."' 161 It suggested that
states could "require that a commercial message appear in such a
form, or include such additional information, warnings, and
disclaimers, as are necessary to prevent its being deceptive."' 6 2 The
Court concluded that the First Amendment "does not prohibit the
State from insuring that the stream of commercial information flow
155. 425 U.S. 748 (1976).
156. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942), overruled
by Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425
U.S. 748 (1976).
157. Va. State Bd. of Pharmacy, 425 U.S. at 765 ("Advertising, however
tasteless and excessive it sometimes may seem, is nonetheless dissemination of
information as to who is producing and selling what product, for what reason,
and at what price.").
158. See id. at 770.
159. See id.
160. Id. at 771-772.
161. Id. at 771.
162. Id. at 771 n.24.
[Vol. 39:447
163
cleanly as well as freely."'
The following year, the Court applied the reasoning of Virginia
Pharmacy to advertising by attorneys. In Bates v. State Bar of
Arizona,164 the Court found that an Arizona state bar's prohibition on
attorney advertising violated the First Amendment. 16 As in Virginia
Pharmacy, the Court was concerned with protecting the public's
interest in obtaining information needed to make informed
decisions. 166 While the Court rejected the claim that all advertising
by attorneys was inherently misleading, it emphasized that the
advertising here pertained only to routine services and did not make
claims about the quality of the service.' 67 The Court stressed that it
would uphold regulations of false, deceptive, or misleading
advertising. 168 Further, "because the public lacks sophistication
concerning legal services, misstatements that might be overlooked or
deemed unimportant in other advertising may be found quite
inappropriate in legal advertising."' 6 9 The Court gave two examples
of possible deceptive advertising: claims as to quality of service,
because they are "not susceptible of measurement or verification,"
and in-person solicitation. 70
In Ohralik v. Ohio State Bar Ass'n, 171 the Court took up the
question of in-person solicitation, upholding sanctions against an
Ohio lawyer for soliciting young accident victims immediately after
the accident. 172 While noting the holding in Bates that the First
Amendment protects truthful, restrained advertising regarding
routine legal services, the Court found that in-person solicitation
presented a different kind of advertising than in Bates.173 The Court
was concerned that in-person solicitation would exert pressure and
163. Id.
at 771-72. Justice Stewart concurred, writing separately to explain
why the Court's decision did not preclude government regulation of false or
deceptive advertising. See id.
at 776-81 (Stewart, J., concurring).
164. 433 U.S. 350 (1977).
165. Id.
at 384.
166. See, e.g., id. at 374-75.
167. See id.
at 372-73, 383-84.
168. Id. at 383.
169. Id. at 383-84.
170. Id.
171. 436 U.S. 447 (1978).
172. Id. at 449-50 (upholding sanctions where in-person solicitation
occurred while one victim was still in the hospital).
173. Id. at 454-55.
May 2006]
74
demand an immediate response without time for reflection. 1
In Friedman v. Rogers,175 the Court upheld a Texas law
prohibiting the practice of optometry under a trade name.176 While
acknowledging that a trade name was a form of commercial speech,
the Court found that it differed significantly from the commercial
speech at issue in Virginia Pharmacy and Bates because those cases
involved statements about the product or services offered and their
prices. 177 In contrast:
A trade name conveys no information about the price and
nature of the services offered by [a professional] until it
acquires meaning over a period of time by associations
formed in the minds of the public... [T]hese ill-defined
associations of trade names with price and quality
information can be manipulated .... 78
Thus, the Court concluded that there was a significant possibility
79
that professionals would use trade names to mislead the public.
Since optometrists could communicate factual information about the
businesses directly to the public, Texas had done no more than
require that information about 8optometry services appear in a form
necessary to prevent deception.'
In its 1980 decision in Central Hudson Gas & Electric Corp. v.
Public Service Commission,'81 the Court articulated the four-prong
test for analyzing the constitutionality of restrictions on commercial
speech that has been applied in all subsequent commercial speech
cases:
For commercial speech to come within [First Amendment
Protection], it at least must concern lawful activity and not
be misleading.
Next, we ask whether the asserted
governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation
directly advances the governmental interest asserted, and
174. See id. at 457.
175. 440 U.S. 1 (1979).
176, Id. at 19.
177.
178.
179.
180.
181.
Id. at 11-12.
Id. at 12-13.
Id. at 13.
Id. at 16.
447 U.S. 557 (1980).
474
[Vol. 39:447
whether it is not more extensive than is necessary to serve
that interest.' 2
Noting that; the First Amendment concern for commercial
speech was based on the informational function of advertising, the
Court observed that "[c]onsequently, there can be no constitutional
objection to the suppression of commercial messages that do not
accurately inform the public about lawful activity. The government
may ban forms of communication more likely to deceive the public
than to inform it."' 8 3 In Central Hudson, however, the Court held
that the advertising by electric utilities at issue was not misleading,
and found that the prohibition on truthful, non-misleading
advertising was unconstitutional because it failed the fourth prong of
the test.' 8 4
Although many have criticized the commercial speech doctrine
generally and the Central Hudson test in particular,' 8 5 the Court
continues to apply it.' 86 Most Supreme Court decisions finding
restrictions unconstitutional under the Central Hudson test have
involved truthful, nonmisleading speech. 187 Only three cases decided
182. Id. at 566.
183. Id. at 563.
184. See id.
at 569-71.
185. See, e.g., 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484, 522-23
(1996) (Thomas, J., concurring) (arguing that commercial speech should be
afforded the highest level of protection under the First Amendment); Alex
Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L.
REv. 627, 631 (1990) (discussing how subsequent cases shed little light on the
CentralHudson test aside from "standing as ad hoc subject-specific examples
of what is permissible and what is not").
186. See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 367-68
(2002) (noting that although some members of the Court had expressed doubts
about CentralHudson, there was "no need in this case to break new ground");
Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 184 (1999)
(noting that while "certain judges, scholars, and amici curiae have advocated
repudiation of the Central Hudson standard," Central Hudson provided an
"adequate basis" for decision ).
187. See, e.g., Thompson, 535 U.S. at 374-77 (finding unconstitutional a law
prohibiting pharmacists from truthfully advertising that they could compound
drugs); Lorrilard Tobacco Co. v. Reilly, 533 U.S. 525, 564-66 (2001) (finding
unconstitutional various state restrictions on truthful advertising of tobacco
products); Greater New Orleans Broad. Ass'n, 527 U.S. at 194-96 (finding
unconstitutional restrictions on broadcast of truthful advertising for legal
gambling casinos); 44 Liquormart, Inc., 517 U.S. at 489 (finding unconstitutional a prohibition on truthful advertising of liquor prices); Rubin v. Coors
May 2006]
475
after Central Hudson involved speech that was alleged to have been
misleading.
First, in Zauderer v. Office of DisciplinaryCounsel,'88 an Ohio
attorney was disciplined for running an advertisement offering to
represent clients who were injured by the Dalkon Shield, an
intrauterine contraceptive device. 8 9 The Ohio Supreme Court had
found the advertisement misleading in several respects. 190 The
United States Supreme Court overturned the sanction for running an
advertisement that contained an illustration of the Dalkon Shield. 191
It found that none of the statements in the advertisement were false
or deceptive. 192 i Moreover, it rejected the state's contention that
illustrations posed an unacceptable risk that the public would be
misled, manipulated or confused because the state cited no evidence
193
to support this claim.
However, the Court upheld the sanction for omission of
information regarding the lawyer's contingent-fee arrangements,
noting that "[b]ecause the extension of First Amendment protection
to commercial speech is justified principally by the value to
consumers of the information
such speech provides,...
[the
attorney's] constitutionally protected interest in not providing any
particular factual information in his advertising is minimal."' 194 It
held that disclosure need only be "reasonably related to the State's
Brewing Co., 514 U.S. 476, 493 (1995) (finding unconstitutional a prohibition
on nonmisleading display of alcohol content on beer labels ); Edenfield v.
Fane, 507 U.S. 761, 765 (1993) (finding unconstitutional solicitation bans
placed on direct, uninvited solicitations from certified public accountants
where no evidence existed that such solicitations were likely to lead to false or
misleading claims); Shapero v. Ky. Bar Ass'n, 486 U.S. 466, 473 (1988)
(finding unconstitutional a categorical prohibition of lawyers soliciting business by sending truthful and non-deceptive letters to potential clients); Bolger
v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 (1983) (finding unconstitutional
a statute prohibiting unsolicited mailing of truthful and non-misleading
contraceptive ads); In re R.M.J., 455 U.S. 191, 203 (1982) (finding that the
First Amendment protected lawyer advertising that included truthful and nonmisleading information about practice areas).
188. 471 U.S. 626 (1985).
189. Id. at 635.
190. Id.
191. Id. at 655-56.
192. Id. at 645.
193. Id. at648.
194. Id.
at 651, 655.
[Vol. 39:447
interest in preventing deception of consumers" and that here, the
advertisement was likely to mislead members of the public because
they were unlikely to be aware of the technical distinction between
fees and costs.' 95 The Court concluded that "[w]hen the possibility
of deception is as self-evident as it is in this case, we need not
require the State to 'conduct a survey of the.., public before it
[may] determine that the [advertisement] had a tendency to
, 96
mislead.""i
Second, in Peel v. Attorney Registration & Disciplinary
Commission,197 the Court held that an attorney had a First
Amendment right to include the fact that he was certified as a trial
specialist on his letterhead.' 9 Although the Illinois Commission had
found the inclusion of this information misleading, a closely divided
Court disagreed. 199 Five Justices thought the letterhead was
potentially misleading, but disagreed as to whether they should allow
the state to ban it or only require additional information. 200 Justice
Stevens' decision for the Court emphasized that the facts stated on
the letterhead were true and verifiable and that no one contended that
any person had actually been misled.2 0 '
He "reject[ed] the
paternalistic assumption that the recipients of petitioner's letterhead
are no more discriminating than the audience for children's
195. Id. at 651-52.
196. Id.at 652-53 (quoting F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374,
391-392 (1965)).
197. 496 U.S. 91 (1990).
198. Id. at93, 110-111.
199. Id. at 106, 110.
200. Justice Marshall, joined by Justice Brennan, concurred, noting that
although the letterhead was not actually misleading, it was potentially
misleading, and that the state may enact measures other than a total ban such as
requiring a disclaimer. Id. at 111 (Marshall, J., concurring). Justice White
dissented based on his belief that the speech was potentially misleading and
that the state should be allowed to ban the letterhead in present form. Id.at
118 (White, J., dissenting). Justice O'Connor, joined by Justices Rehnquist
and Scalia, also dissented. She thought the letterhead was likely to mislead the
public, and that additional disclosures would be unlikely to alleviate the
problems. Id. at 125 (O'Connor, J., dissenting). She argued that "[i]f the
information cannot be presented in a way that is not deceptive, even statements
that are merely potentially misleading may be regulated with an absolute
prohibition." Id.
201. Id. at 100-01.
May 2006]
television." 20 2 He concluded that while the state may take action
against sham certifications or require disclaimers, it could not
information about certification that was useful to
completely 20ban
3
consumers.
Finally, in Ibanez v. Florida Dept. of Business,20 4 the Court
overturned a sanction against an attorney who had accurately
identified herself as a Certified Public Accountant and a Certified
Financial Planner. 20 5 The Florida CPA Board argued that her use 20of6
these designations was either inherently or potentially misleading.
While the two dissenters agreed that the designations were
misleading, 20 7 the majority stressed that the information was true and
that the Board had failed to point to any harm not "purely
hypothetical. ' 2 8 Thus, the Court continues to apply the Central
202. Id. at 105 (comparing Bolger v. Youngs Drug Prods. Corp., 463 U.S.
60, 74 (1983)).
203. Id. at 110.
204. 512 U.S. 136 (1994).
205. Id.
at 138-39, 143.
at 144, 146.
206. Id.
207. Id.
at 149 (O'Connor, J., concurring in part and dissenting in part).
208. Id.
at 146. FloridaBar v. Wentfor It, Inc., 515 U.S. 618 (1995), did not
involve commercial speech that was claimed to be deceptive or misleading.
Nonetheless, the Court upheld a Florida bar rule prohibiting personal injury
lawyers from sending targeted direct mail solicitations to victims and their
relatives for 30 days following an accident or disaster. Id.at 635. The Court
reasoned that the state has a substantial interest in protecting the privacy of
personal injury victims against intrusive, unsolicited contact by lawyers and in
protecting the reputation of the legal profession. Id.It emphasized that here,
in contrast to its 1993 decision in Edenfield v. Fane, 507 U.S. 761 (1993),
which held unconstitutional a complete ban against in-person solicitation by
CPAs, the record contained "data-both statistical and anecdotal-supporting
the Bar's contentions that the Florida public views direct-mail solicitations in
the immediate wake, of accidents as an intrusion on privacy that reflects poorly
at 626. The Court found a reasonable fit between the
upon the profession." Id.
ends and means because the prohibition was limited to a brief period, and
many alternative ways remained for lawyers to advertise and people to learn
about availability of legal representation. See id.at 633-34. Two other
Supreme Court decisions also upheld restrictions on truthful and nonmisleading advertising. The restrictions at issue in Posadas de Puerto Rico
Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 330-31 (1986), which
upheld prohibitions against advertising of casinos to residents of Puerto Rico,
and United States v. Edge Broad. Co., 509 U.S. 418, 421-25 (1993), which
upheld a restriction on the broadcast of lottery advertisements by a radio
station licensed to a state where lotteries were illegal. Both were found to meet
the Central Hudson test because they served the state's interest in protecting
[Vol. 39:447
Hudson test in analyzing restrictions on commercial speech and will
allow regulation of speech found to be misleading or deceptive.
B. Are Product Placement and Character
Marketing Commercial Speech?
When the commercial speech doctrine is applied to the proposed
legislation prohibiting the use of product placements and character
marketing to children, the threshold question is whether these forms
of marketing are' commercial speech. One critique of the Supreme
Court's commercial speech doctrine is that it is sometimes difficult
to tell what constitutes commercial speech. 20 9 However, in the case
of product placements and character marketing, it seems clear that
the speech at issue is commercial speech.
In Bolger v. Youngs DrugProducts Corp.,2 10 the Supreme Court
examined three factors which, taken together, supported the
conclusion that the speech at issue was properly classified as
commercial speech: (1) whether the speech was advertising; (2)
whether it referred to a specific product; and (3) whether the speech
served the economic interest of the speaker. 2 11 Each of these factors
applies to paid product placement.
Product placement is
undoubtedly a type of advertising. As discussed above, advertising
agencies find placement opportunities in films, television programs,
and other media, and advertisers pay for the right to have their
product placed.21 2
Product placement involves showing or
mentioning a specific product or brand. Last, product
placement
2 13
advertisers.
the
of
interests
economic
the
serves
clearly
citizens from the ills associated with gambling.
209. See, e.g., David Vladeck, Lessons from a Story Untold: Nike v. Kasky
Reconsidered, 54 CASE W. RES. L. REv. 1049, 1060 (2004) (discussing
criticism of Court's test for commercial speech due to difficulty differentiating
between commercial and non-commercial speech).
210. 463 U.S. 60 (1983).
211. See id. at 66-67.
212. See supra notes 2-12 and accompanying text.
213. I am not claiming that the existence of product placement converts the
entire movie, television program, or video game into commercial speech.
Rather, the product placement itself is the commercial speech.
May 2006]
479
Advertisements and packaging featuring celebrity spokescharacters also easily fit within commercial speech as defined by the
three Bolger factors: they are a form of advertising, they refer to
specific products, and they serve the economic interests of the
speaker. 2 Some types of character marketing, however, may not be
considered speech at all. For example, when a fast food restaurant
enters into a licensing agreement with a movie producer that allows
it to use the characters as toys in children's meals, this could
arguably be viewed as pure economic activity subject to rational
basis review rather than speech. Invariably in such deals, however,
the characters also appear in television, print and Web site
advertisements.
This type of advertising would constitute
commercial speech as well as economic activity. Moreover, given
that the Supreme Court has found letterhead and beer labels are
commercial speech,215 it would likely find that the depiction of
characters on packaging is commercial speech.
C. Are ProductPlacement and CharacterMarketing Misleading?
Because the Court will likely consider product placement and
character marketing as commercial speech, the four-part Central
Hudson test applies. Under the Central Hudson test, the Court asks
"as a threshold matter whether the commercial speech concerns
unlawful activity or is misleading.21 6 If so, then the speech is not
protected by the First Amendment."
To address lhis question, Congress could point to a substantial
body of academic research to support a finding that these forms of
advertising are misleading to children. A great deal of research has
been done on how children understand traditional television
advertising. 217 As noted above, this research formed the basis for the
FCC's restrictions on children's advertising in the 1974 Policy
214. See Bolger, 463 U.S. at 67.
215. Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995) (treating beer
labels as commercial speech); Peel v. Attorney Registration and Disciplinary
Comm'n, 496 U.S. 91, 99-100 (1990) (determining that a letterhead was
commercial speech).
216. Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002).
217. For a more detailed summary of research about children's
understanding of advertisements see BARRIE GUNTER ET AL., ADVERTISING TO
CHILDREN ON TV: CONTENT, IMPACT AND REGULATION (2005) and Calvert,
supra note 124, at 351-54.
[Vol. 39:447
Statement and for the CARU Guidelines. 218 Research conducted
since the 1970s has confirmed that children do not fully understand
advertising until approximately age eight.219
As Dale Kunkel explains, for children to fully comprehend
advertising messages:
First, they must be able to discriminate at a perceptual level
commercial from noncommercial content, and, second, they
must be ableto attribute persuasive intent to advertising and
to adjust their interpretation of commercial messages
consistent with that knowledge. Each of these capabilities
develops over time, largely as a function of cognitive
growth and development rather than the accumulation220of
any particular amount of experience with media content.
Children below the age of four or five have difficulty
22 1
distinguishing between television programs and commercials.
Until they are seven or eight, even if they can distinguish
commercials from other content, children are generally unable to
recognize the persuasive intent of television advertising because of
22 Until children develop this
their limited cognitive development. 222
capability, they are thought to be "uniquely vulnerable to commercial
persuasion" because they cannot effectively evaluate commercial
claims.223
Even then, children's "general understanding and
skeptical attitude may not be sufficient. Children between the ages
of eight and twelve tend not to invoke their knowledge of persuasive
influence attempts when viewing a television commercial, unless
218. See supra notes 55-58, 132-133 and accompanying text.
219. See, e.g., BRIAN WILCOX ET AL., REPORT OF THE APA TASK FORCE ON
ADVERTISING AND CHILDREN 5-9 (2004) (summarizing research) (refer to the
section entitled, "Psychological Issues in the Increasing Commercialization of
Childhood"); GUNTER ET AL., supra note 217, at 30-47.
220. Dale Kunkel, Children and Television Advertising, in HANDBOOK OF
CHILDREN AND THE MEDIA 375, 378 (Dorothy G. Singer & Jerome L. Singer
eds., 2001).
221. Id. at 378-79 (summarizing research conducted since the 1970s).
222. Id.at 380-81 (summarizing research conducted since the 1970s).
223. BRIAN WILCOX ET AL., supra note 219, at 1 (refer to section entitled,
"Recommendations"). Indeed, the American Psychological Association has
recommended "that television advertising be restricted during programming
directed to or seen by audiences primarily composed of children 8 years of age
and under." Id.
May 2006]
224
explicitly reminded to do so."
1. Research on Product Placement
Because children under the age of eight generally do not
understand the persuasive intent of traditional advertising, it is
virtually inconceivable that, even if they recognize product
placements as a type of advertising, they would understand that
product placement is a form of advertisement intended to promote a
product or brand. Indeed, in her 1995 dissertation, Stacy Vollmers
found that "the majority of second and fourth grade subjects do not
recognize the promotional intent of placements while a large
majority of sixth grade subjects do. 225
As to whether product placement affects children's attitudes
toward products, her findings were less conclusive. Vollmers found
that children recognized and recalled product categories placed in
motion pictures and that children viewing the film with product
placement were more likely to recall the product categories, but not
necessarily the product brands. 226 Contrary to her expectations, she
224. Elizabeth S. Moore, Children and the Changing World of Advertising,
52 J. Bus. ETHICS 161, 163 (2004). Moore cites research suggesting "that
older children (11-12 year olds) may actually be more attentive to the
entertainment provided by advertising than younger children (7-8 year olds),
and are more likely to allow it to shape their interpretations of product usage."
Id. at 164.
225. Stacy M. Vollmers, The Impact on Children of Brand and Product
Placements in Films 90 (Aug. 31, 1995) (unpublished Ph.D. dissertation,
Florida State University) (on file with University Microfilms, http://www
.umi.com). Vollmers reports on an experiment she conducted in which children in grades two, four and six viewed edited versions of the movie Lassie.
See id.One version of the film had product placements for eight products,
while the second version had most of the product placements removed or
obscured so that the brand name or logo was not visible. Id. at 38-39. The
brands and products featured were Pepsi soda, Quaker Oats cereal, American
gas, Casio walkman, John Deere tractor, U-Haul moving trailer, Pop-Tarts
toaster treats, and Pennzoil oil. Id. at 40. The placements were also of
different type and frequency, e.g. obscured placements, single placements,
multiple placements, and multiple placements with character use and mention.
Id. at 81 tbl.6. 1. The children completed questionnaires both before and after
viewing the film that asked questions regarding "brand and product
recognition, brand and product affect [i.e., whether they liked a product], brand
choice, and affect toward the movie and toward the characters in the movie."
Id. at 45-46.
226. Id. at 76.
[Vol. 39:447
found that the brand placement had no effect on preferences for the
brand.227 However, she noted several limitations with the study.
First, all of the placements were for established brands. She
suggested that a new brand or product featured in a movie may have
a greater impact 2 8 Second, the placements were not necessarily
targeted to young audiences. She pointed out that the fact that
"although no change in affect as a result of brand and product
placements was found in this study this does not mean the
phenomena does not occur."2 29 Vollmers suggested that "[t]argeting
placements of new products to a young market may be more
effective because it may shape initial perceptions associated with the
brand., 23'
Finally, she noted that while the study found no
immediate influence on brand preference, the impact of product
23 1
placement on brand preferences might be more long term.
Vollmers explained:
Only differences in measures of memory are found with a
placement. However, altering memory may impact future
interactions with the brand. Memory is important to
marketers because consumers often make product decisions
without any external information search.
Consumers
simply search internally for information and choose among
recalled brands. If the placement of brands and products in
a motion picture creates more top-of-the-mind awareness or
moves the brand into the child's evoked
set, marketers have
232
effort.
promotional
succeeded in their
In a recent published work, authors Susan Auty and Charlie
Lewis found that product placement does affect children's brand
choices. 233 They conducted an experiment in the United Kingdom in
which 105 children in two age groups (six to seven-year olds and
eleven to twelve-year olds) viewed clips of the movie Home
227.
228.
candy
229.
230.
231.
Id. at 77.
Id. at 79-80. She notes, for example, that Reese's Pieces peanut butter
was a relatively new brand when it appeared in E.T. Id.at 87.
Id. at 87-88.
Id. at 79.
Id. at 89.
232. Id. at 91 (citations omitted).
233. See Susan Auty & Charlie Lewis, Exploring Children's Choice: The
Reminder Effect of ProductPlacement, 21 PSYCHOL. & MARKETING. 697, 708
(2004).
May 2006]
Alone. 234 One clip contained a product placement for Pepsi and the
other did not. 235 After viewing the clips, the children were offered a
choice of Pepsi or Coke.236 The control group that had not seen the
product placement preferred Coke over Pepsi (58:42), while the
group that had viewed the product placement preferred Pepsi
(38:62).237
This difference was striking because Coke has a
significantly greater market share than Pepsi in the UK (75:25).238
The authors concluded that "this study appears to show a clear effect
of product placement upon children's incidental choice of a
drink., 239 Further, they found "[n]o difference in choice... between
those who correctly recalled the brand and those who did not,
regardless of age, suggesting that explicit memory does not play a
significant role in choice. ' '24° Thus, this experiment supports other
research showing that failure to remember the exposure does not
mean that it has no effect.24 '
Auty and Lewis also found the hypothesis that "mere exposure
may make the individual's attitude toward the objects more positive
is supported by the findings only to the extent that a reminder of the
object is provided., 242 They suggested that "implicit memory
reactivated by a current exposure provides an explanation for the
findings." 243 They observed that:
234. Id. at 704.
235. Id.
236. Id. at 705.
237. Id. at 706.
238. Id.
239. Id. at 708.
240. Id. at 709. They found no statistically significant difference in the
ability of each age group to recall the Pepsi placement after prompting, but that
younger children required more prompts than the older children, "in keeping
with an expected increase in cognitive ability." Id. at 706.
241. Id. at 710.
242. Id. at 709.
243. Id. at 710.
Explicit memories are both conscious, in the sense that the person is
aware of remembering prior events, and intentional, in the sense that
the person in some sense wants, or voluntarily intends, to retrieve
them. In contrast, implicit memories are unconscious, in the sense
that the person is unaware of retrieving or otherwise being influenced
by prior events, and their retrieval is thought to occur involuntarily or
without intent.
Law & Braun-LaTour, supra note 4, at 67.
484
[Vol. 39:447
Given the tendency of young children to watch videos of
their favorite films over and over again, the findings have
ethical implications for the use of product placement in
films targeted at young children who have not yet acquired
strategic processing skills. Without being aware of their
exposure to commercial messages, they have been affected
by the exposure in some preconscious way. 244
In another article, Auty and Lewis further explored the
implications of their experiment. 245 They noted that "the surprising
dissociation between the children's ability to recall having seen Pepsi
and their choice of this brand over its more successful competitor in
the market is, of course, the very effect-increased interest, salesthat advertisers strive for.' '24 6 They suggested that this result may be
explained by psychological research over the last fifteen years that
distinguishes between explicit and implicit (nonconscious)
memory.247
Research shows that "implicit memory does not appear to be
affected by increasing maturity," but explicit memory "improves
substantially from early childhood to adolescence." 248 Because
memory performance is a function of one's knowledge base and
children have a smaller knowledge base than adults, Auty and Lewis
theorized that more product perceptions will be at a preconscious
level and lead to implicit rather than explicit memories. 249 These
implicit memories may influence their feelings toward the product
by, for example, creating familiarity that will affect future brand
choice. 250 Auty and Lewis noted that while
[a]dults may be able to guard against preconscious
perceptions simply by noting the appearance of a product as
a placement with a commercial origin[,] ... [researchers]
244. Auty & Lewis, supra note 233, at 710.
245. See Susan Auty & Charlie Lewis, The "Delicious Paradox":
Preconscious Processing of Product Placements by Children, in THE
PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE LINES BETWEEN
ENTERTAINMENT AND
PERSUASION,
Lawrence Erlbaum Assoc. 2004).
246. Id. at 119.
247. 1d.
248. See id. at 124-25.
249. Id. at 125-26.
250. See id. at 126.
supra, note 3, at 117 (L.J. Shrum ed.,
May 2006]
found that children 8-12 years of age need cues to produce
counterarguments and suggest that cues would not be
effective for children younger than 8 years. Hence, one
could argue that product placement is likely to be most
effective in young children, precisely because it is almost
always preconscious, allowing affect without (conscious)
cognition: a delicious
paradox with potentially insidious
25
and powerful effects.
1
They noted that product placement "is not strictly subliminal
communication... because products usually have exposure times
measured in seconds rather than milliseconds, often with some verbal
labeling., 252 Nonetheless, product placement may be considered
253
subliminal in that it influences choice on an unconscious basis.
The FCC has held that "that use of subliminal perception is
inconsistent with the obligations of a [broadcast] licensee, and...
that broadcasts employing such techniques are contrary to the public
interest. Whether effective or not, such broadcasts clearly are
intended to be deceptive." 254 Similarly, product placement that
251. Id. at 128.
252. Id. at 117-18.
253. Id. at 118. Some recent research on the impact of product placement on
adults also suggests that the measures typically used to assess effectiveness of
traditional advertising do not account for the effects of product placement.
Law and Braun-LaTour argue that "the recall and recognition measures are not
capable of detecting the more subtle effects of product placements." Law &
Braun-LaTour, supra note 4, at 64. They conducted an experiment in which
adults viewed six excerpts from Seinfeld containing at least six product
placements (some central to the plot while others simply seen or mentioned)
under the guise of collecting their evaluations of the show. Id. at 72. After
viewing the clips, participants completed an "implicit choice task" in which
they were asked to choose a brand from a set of two brand names where one
brand was present in the episode and the other was not. Id. Participants
performed this task without reference to the viewing. Id. They also completed
a similar "explicit recognition test" in which they were instructed to think back
to the viewed episode and identify the brands present in the video. Id. The
study found that "placements that were central to the program were best
recalled and recognized though least likely to be chosen. In contrast, . . . seenonly placements showed lower recall and recognition compared with heardonly placements but were chosen most frequently." Id. at 73. The researchers
who conducted this experiment suggest it shows that product placements that
viewers are not aware of may nonetheless influence them. See id.
254. Public Notice Concerning the Broadcast of Information by means of
"Subliminal Perception" Techniques, 44 F.C.C.2d 1016, 1017 (1974). The
486
[Vol. 39:447
operates at a subconscious level is deceptive.
2. The Federal Trade Commission Staff Ruling on
Product Placement
It is true the FTC staff recently found that product placements
255
generally, including those seen by children, are not deceptive.
However, the staff based its ruling on a very limited record. For
example, the FTC staff256indicates no awareness of the recent research
on product placement.
Even given the limited record, the staff analysis glosses over the
problem that product placement itself is deceptive because the
audience does not know the product's inclusion is promotional and
that the program producer has been paid to include it. 211 Instead, the
FTC staff takes the position that a product placement can only be
deceptive if it presents false or misleading information about a
product.258 Under this view, since a product placement generally
259
provides little or no factual information, it cannot be deceptive.
This position seems inconsistent with the FTC's guidelines on
endorsements. FTC guidelines define endorsements broadly to
include "any advertising message ...consumers are likely to believe
reflects the opinions, beliefs, findings, or experience of a party other
than the sponsoring advertiser." 260 The guidelines cite as an example
of an endorsement a television advertisement for golf balls showing a
prominent professional golfer hitting the golf balls even though he
says nothing about the golf balls. 26 ' It is hard to see a distinction
between a golfer hitting a golf ball and a judge on American Idol
sipping a Coke. If anything, the American Idol example has a greater
potential for deception because the use of the product occurs in a
program rather than a commercial. Yet, the FTC requires clear and
FCC's prohibition on subliminally perceptive advertising appears to apply only
to television, and not to movie theater commercials or print media. See Jef I.
Richards & Richard Zakia, Pictures: An Advertiser's Expressway Through
FTC Regulation, 16 GA. L. REV. 77, 123 (1981).
255. See Letter from Mary K. Engle, supra note 2, at 3-5.
256. See id. at 2.
257. See id. at 5.
258. See id. at3.
259. Id.
260. Guides Concerning Use of Endorsements and Testimonials in
Advertising, 16 C.F.R. § 255.0(b) (2005).
261. Id. § 255.0(b) ex.5.
May 2006]
487
conspicuous disclosure of any payment in the case of endorsements, 262 but does not require any disclosure when it comes to
product placement.
Furthermore, the case on which the staff relies does not directly
support its interpretation. In JS&A Group, Inc., the FCC alleged as a
completely separate count that it was deceptive for a paid program to
be held out to the public as an independent program. 63 The same is
true in many other cases involving deceptive formats. 264 The
deceptive format claim does not seem to depend on whether the
information presented about the product is factual.
Taken to its logical end, the staff's claim that only
advertisements presenting objective information about a product's
performance or attributes can be deceptive would immunize a large
number of advertisements from being found deceptive. Much of
modem advertising does not communicate information about a
product's attributes, price, or availability, but rather is concerned
with creating a certain image or associating a certain emotion with a
product. 265 Moreover, immunizing from regulation commercial
speech that lacks informational content would have the effect of
turning the commercial speech doctrine on its head. As discussed
earlier, the reason that commercial speech is protected under the First
Amendment at all is that it provides useful information to
262. Id. § 255.5. The FTC Guidelines also require that endorsements be
true, in the sense that they reflect the "honest opinions, findings, beliefs, or
experience of the endorser." Id. § 255.1(a).
263. JS&A Group, Inc., 111 F.T.C. 522, 524 (1989).
264. For example, in In re Vital Basics, Inc., No. C-4107, 2004 FTC LEXIS
52, at 28 (F.T.C. Apr. 26, 2004), the FTC alleged that representing, directly or
by implication, that these advertisements were independent radio programs and
not paid commercial advertising constituted unfair or deceptive acts or
practices under the Federal Trade Commission Act. See also Mega Sys. Int'l,
Inc., 125 F.T.C. 973, 986 (1998) (finding representations false and misleading
where respondents portrayed paid commercial advertising as independent
television and radio programs); Synchronal Corp., 116 F.T.C. 1189, 1202
(1993) (finding representations false and misleading where respondents
portrayed paid commercial advertising as independent television programs);
Michael S. Levey, 116 F.T.C. 885, 900 (1993) (finding representations false
and misleading where respondents portrayed paid commercial advertising as
independent television programs).
265. See Ronald K.L. Collins & David M. Skover, Commerce & Communication, 71 TEX. L. REV. 697, 702-07 (1993).
LOYOLA OFLOS ANGELES LA WREVIEW
[Vol. 39:447
consumers.266 In fact, in Friedmanv. Rogers,267 the Court found that
the very fact that a trade name conveys no information about the
services offered created the potential for
price or nature of the
268
misleading the public.
Even assuming, however, that the FTC staff letter correctly
interprets its own precedent, Congress, of course, remains free to
make its own determination as to whether certain marketing practices
are deceptive.
3. Research on Character Marketing to Children
Congress could certainly find that using characters popular with
children to market unrelated products is deceptive. As the CARU
Guidelines state: "Studies have shown that the mere appearance of a
character with a product can significantly alter a child's perception of
the product. Advertising presentations by program/editorial charto distinguish between
acters may hamper a young child's ability
269
program/editorial content and advertising."
Or, as the Center for Science in the Public Interest summarizes
the problem: "Younger children may not understand that
spokespeople are paid to promote products, and small children may
not even understand that cartoon characters do not really exist.
shows also blurs the
Using characters from movies and television
' 270
line between programs and advertising."
Dr. Jennifer Kotler, Director for Knowledge Management,
Department of Education and Research at Sesame Workshop,
presented a very dramatic demonstration of the effectiveness of
character marketing at the recent FTC workshop on Marketing, SelfRegulation, and Childhood Obesity. She described research on
27 1
whether the Sesame Street characters influenced food choices.
266. See supra notes 157-158 and accompanying text; see also Robert Post,
The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 55
(2000) (arguing commercial speech is protected under the First Amendment
because of its informational function).
267.
268.
269.
270.
440 U.S. 1 (1979).
Id.
at 12-13.
CHILDREN'S ADVER. REVIEW UNIT, supra note 114, at 7.
CTR. FOR SCI. INTHE PUB. INTEREST, supra note 26, at 25.
271. See Jennifer Kotler, SESAME WORKSHOP, THE HEALTHY HABITS FOR
LIFE INITIATIVE AT SESAME WORKSHOP 6 (2005), available at
http://www.ftc.gov/bcp/workshops/foodmarketingtokids/presentations/jkotler.p
df [hereinafter KOTLER, HEALTHY HABITS]; see also Jennifer Kotler,
May 2006]
Children were asked whether they wanted to eat broccoli or a
Hershey bar.272 Twenty-two percent chose broccoli. 273 Next, a
sticker showing Elmo, a well known character from Sesame Street,
was attached to the broccoli. 4 A sticker showing a different Sesame
Street character, who had not yet been on the air, was attached to the
Hershey Bar.27 5 This time, 50% of the children said they wanted the
broccoli.276 Then, the stickers were reversed so that the Elmo sticker
was on the Hershey Bar. 277 Under these conditions,
only 11%
278
Bar.
Hershey
the
preferred
89%
and
wanted the broccoli
Most research on the effect of character marketing on children
concerns host-selling on television because, as discussed above, the
FCC has a policy against host-selling on children's television
programs. 9 Charles Atkin, whose study was published in 1975,
was the first to investigate host-selling. 28 0 Atkin showed children
aged three to seven a commercial for Flintstone's cereal that was
embedded within either a Flintstones or Bugs Bunny cartoon. 28 He
found that one fourth of the children who recalled seeing the
Flintstones eating cereal thought this activity occurred during the
cartoon rather than the commercial.28 2 He further found that children
who saw the commercial during the Flintstones were more likely to
283
desire the cereal than those who saw it during Bugs Bunny.
Perspectives on Marketing, Self-Regulation and Childhood Obesity, Remarks
at Federal Trade Commission and the Department of Health and Human
Services 287-289 (July 14, 2005) (transcript available at http://www.ftc
.gov/bcp/workshops/foodmarketingtokids/transcript 050714.pdf) (describing
research conducted to determine whether the Sesame Street characters
influenced food choices).
272. See KOTLER, HEALTHY HABITS, supra note 271, at 15.
273. See id.
274. Id. at 16.
275. See id.
276. Id.
277. See id. at 17.
278. Id.
279. See supraPart III.B. 1.
280. Mariea Grubbs Hoy et al., Animated Host-SellingAdvertisements: Their
Impact on Young Children's Recognition, Attitudes, and Behavior, 5 J. PUB.
POL'Y &MARKETING. 171, 173 (1986).
281. Id.
282. Id,
283. Id.
490
[Vol. 39:447
In the 1980s, Kunkel conducted further research in which
children viewed programming (Flintstones and The Smurfs) and
commercials (for either Fruity Pebbles Flintstone cereal or
Smurfberry Crunch cereal) taped off-the-air on Saturday mornings. 28 4 He found clear evidence of a "confusion effect related to the
host-selling format," 28 5 and that both younger (aged four to five) and
older (aged seven to eight) children were confused. He also found
that the older children were "more favorably influenced toward the
advertised product by host-selling than by viewing the same
commercial in a non-host-selling format."2 8 6 Kunkel suggested that
older children are more skeptical towards commercials generally and
that their skepticism
may... be minimized in the host-selling scenario. By
definition, host-selling commercials feature figures who are
well-known and trusted program heroes. Reactions to the
products endorsed by such figures may be enhanced by an
increase in children's positive affect toward the characters
generated through their viewing of the adjacent program
2 87
content.
In a 2001 study, Mariea Grubbs Hoy, Clifford Young, and John
Mowen conducted experiments using Flintstones and Bugs Bunny
cartoons and cereal commercials comparable to those Atkin used. 2 88
While they found that children had no more difficulty distinguishing
the commercial from the program when seen in a host-selling
context, they did confirm that children were less likely to recognize
the commercial's selling intent in the host-selling context than in the
28 9
non-host condition.
This study also "unexpectedly" found that children viewing the
Pebble's cereal advertisement in the Bugs Bunny cartoon had a larger
positive attitude change toward the cereal than those viewing it
284. Dale Kunkel, Children and Host-Selling Television Commercials, 15
COMM. RES. 71, 78-79 (1988).
285. Id. at 81-83.
286. Id. at 84.
287. Id. at 88.
288. See Hoy et al., supra note 280, at 179-80.
289. Id. at 177-80. Within the host-selling context, however, children had
greater difficulty distinguishing commercials that were imbedded within the
program as opposed to those adjacent to the program. Id. at 180.
May 2006]
within the Flintstones cartoon. 29 0
They speculated that the
introduction of different characters may serve as an attention-getter,
or that children viewing the Flintstones cartoon may be overexposed
and bored with the character. 29 1 While Hoy, Young, and Mowen's
findings differ from those of Kunkel and Atkin as to the impact of
host-selling (as that term is defined by the FCC), for purposes of this
Article, it is irrelevant whether the Flintstones characters sell cereals
better when the advertisement is embedded in a Flintstones cartoon
or another cartoon. Both studies agree, as do most other researchers,
that associating a product
with popular characters can cause children
292
product.
the
desire
to
A recent study by Judith Garretson and Ronald Niedrich
examined how different spokes-character qualities affect brand
attitudes across market segments. 293 This study is not directly on
point since it was limited to "noncelebrity" spokes-characters," that
is, those that were created for the sole purpose of promoting a
product or brand, and the subjects of the experiment were
undergraduate students, not children. 294 Nonetheless, several of their
findings are relevant here. First, they found that trusted spokescharacters were effective in engendering positive brand
evaluations. 295 Second, they found that the use of spokes-characters
results in more favorable brand attitudes for consumers with less
290. Id.
291. Id.at 180-81.
292. Hoy et al., supra note 280, at 180; Kunkel, supra note 284, at 81. But
see Sabrina M. Neeley & David W. Schumann, Using Animated SpokesCharactersin Advertising to Young Children, 33 J. ADVERTISING 7, 8 (2004)
(concluding "although character action and voice may influence a young
child's attention to an ad, recognition of the character and product, and even a
positive attitude toward the product, the relation between spokes-characters
and a child's preference, intention, and choice of product is uncertain").
However, their experiment, which involved pre-school aged children, used
animated characters that were created for the purpose of study and were not
recognized by children. Id. The authors note that "it is possible that strong
experience with a spokes-character, often derived from massive media
exposure and popularity of the characters, motivates the leap from liking to
preference, intention, and choice." Id. at 20.
293. Judith A. Garretson & Ronald W. Niedrich, Spokes-Characters:
Creating CharacterTrust andPositive BrandAttitudes, 33 J. ADVERTISING 25
(2004).
294. See id.at 25, 29.
295. Id.at 33.
492
[Vol. 39:447
brand experience. 296 Because children generally are more trusting
and have less brand experience than adults, they are even more likely
than adults to be susceptible to spokes-character marketing. Finally,
Garretson and Niedrich noted that because consumers are exposed to
characters at an early age through character endorsement of
children's products, these same characters may be used years later to
"prime personal memories, including those of earlier times and felt
trust with the character." 297 Thus, exposure to character marketing as
a child may even affect product choices later in life.
In sum, there is an ample evidentiary basis for Congress to find
that the use of product placement in children's media, and the use of
characters from children's media to market unrelated products, is
deceptive and misleading.
D. The Court Would Likely Uphold LegislationProhibiting
Deceptive CommercialSpeech Aimed at Children
If Congress were to pass the proposed legislation based on its
conclusion that product placement and celebrity spokes-character
marketing in children's media were misleading or deceptive, the
Supreme Court would likely uphold the restrictions under the first
prong of the CentralHudson test. Not only is the commercial speech
at issue misleading and unfair, but restricting it is consistent with the
concerns underlying the commercial speech doctrine. Specifically,
the restriction does not have any significant effect on the speech
available to adults. Moreover, while restrictions on advertising to
adults are disfavored because they are paternalistic, paternalism is
appropriate in regulations designed to protect children. In addition,
the proposed legislation limits only certain forms of advertising to
children, and these forms of advertising provide little if any
information to children.
1. The Legislation is Limited to Advertising to Children
In Lorillard Tobacco Co. v. Reilly,298 the Supreme Court considered restrictions intended to primarily affect children. There, the
Court found Massachusetts' regulations unconstitutional because
296. Id.
297. Id. at 28 (citation omitted). Their experiment confirmed that nostalgia
was an important factor in engendering character trust. Id. at 32.
298. 533 U.S. 525 (2001).
May 2006]
299
they substantially restricted the flow of information to adults.
Specifically, the Court found that the prohibition on outdoor
advertising of smokeless tobacco and cigars within a one-thousand
foot radius of a school playground was a poor fit with the stated goal
of preventing minors from using tobacco products because "[i]n
some geographical areas, these regulations would constitute nearly a
complete ban on the communication of truthful information about
smokeless tobacco and cigars to adult consumers." 300
While
recognizing that Massachusetts had a substantial interest in
preventing underage tobacco use, the Court stated that tobacco
companies had an interest in conveying truthful information to adults
and adults had an
interest in receiving truthful information about
30 1
products.
tobacco
In Bolger, the government argued, among other things, that a
statute prohibiting unsolicited mailing of contraceptive advertising
was necessary to protect children. 30 2 It claimed that that statute aided
"parents' efforts to control the manner in which their children
become informed about sensitive and important subjects such as
birth control. 30 3 The Court agreed this interest was substantial, but
found the means did not fit the end.3° It found it reasonable to
assume parents would exercise control over what enters their
mailboxes. 30 5 Further, any marginal protection for children would be
at the expense of suppressing the availability of this information to
adults: "[t]he level of discourse reaching a mailbox simply
cannot be
' 3°6
limited to that which would be suitable for a sandbox.
299. Id. at 564-65.
300. Id. at 562 (emphasis added).
301. Id. at 564. The point of sale limitation to ads below five feet failed both
prongs three and four. Id. at 566-67. The Court found that the five-foot rule
failed to advance the state's goal of preventing underage tobacco use since
many minors are taller than five feet, and thus, the rule was not a good fit. Id.
302. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 (1983).
303.
304.
305.
306.
Id.
See id. at 73-75.
Id. at 73.
Id. at 74. In F.C.C. v. Pacifica Foundation, 438 U.S. 726, 749 (1978),
the Court recognized the government's interest in protecting children justified
limits on broadcasts heard by adults. However, it distinguished mail from
broadcasting because it was less intrusive and could be better controlled by
parents. Bolger, 463 U.S. at 74.
494
[Vol. 39:447
Unlike outdoor advertising or certain mailed advertisements,
prohibiting product placement and character marketing in children's
media or children's products has only minimal, if any, impact on
adults' access to information. Nor are program producers' First
Amendment rights limited. Producers would be free to use brands so
long as they were not paid (in money or other valuable
consideration) to do so. Thus, for example, the legislation would not
prevent a scene from being shot in Times Square, or preclude the use
of brand name products integral to a story.
Moreover, in the case of product placement and character
marketing, unlike the mail, it is impossible for parents to protect their
children. There are no ratings, filters or blocking devices available
for product placement or character marketing as there are for violent
or sexually explicit programming. Indeed, as discussed earlier,
advertisers' increased interest in product placement is driven in large
find a way to prevent the public from skipping
part by the desire to
30 7
commercials.
over
Throughout the Supreme Court's decisions on commercial
speech, the Court objected to the paternalism underlying the
restrictions. In Virginia Pharmacy, for example, the Court observed
that it was hard to see how the law protected consumers by keeping
them ignorant and referred to the restriction as a "highly paternalistic
approach.,30 8 Similarly, in Peel, Justice Stevens wrote, "[w]e reject
the paternalistic assumption that the recipients of petitioner's
discriminating than the audience for
letterhead are no more
' 30 9
"
television.
children's
Moreover, the cases in which restrictions were upheld involved
advertising directed at populations viewed as more vulnerable. In
Bates, the Court found that advertising by attorneys posed special
risks of deception because of the public's lack of sophistication
concerning legal ,services. 310 Similarly, in Edenfield v. Fane, the
Court distinguished between in-person solicitation by lawyers and inperson solicitation by certified public accountants (CPAs) on the
307. See supra notes 20-21 and accompanying text.
308. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S.
748, 770 (1976).
309. Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91,
105 (1990).
310. Bates v. State Bar, 433 U.S. 350, 383 (1977).
May 2006]
ground that a typical CPA client was an experienced business person
who would be less susceptible to manipulation than the "young
accident victim" involved in Ohralik.31 '
Children clearly lack sophistication and are susceptible to
manipulation by product placement and character marketing.
Additionally, although product placement and character marketing
generally do not involve in-person solicitation, this trend is changing.
Kathryn Montgomery describes how new technologies and data
collection techniques can allow interactive product placement and
other forms of one-on-one marketing to children. 312 Sandra Calvert
also predicts that "[i]n the future, host selling will take on a new
form. Intelligent, humanlike characters will be developed to create
and adolescents,
personal relationships with individual children 313
trust.
and
affection,
familiarity,
cultivating
thereby
Thus, in considering the constitutionality of restrictions on
product placement and character marketing to children, the Court
should not be concerned that the legislation is paternalistic.
Paternalism is appropriate when children are involved, especially
here, where parents are not able to effectively protect their children
without the state's assistance. Indeed, in other recent cases involving
restrictions on noncommercial speech; the Court has been willing to
protect children from speech considered harmful to them so long as it
did not infringe significantly on the rights of adults. For example, in
United States v. American LibraryAss 'n,314 the Court rejected a First
Amendment challenge to the Children's Internet Protection Act
which required public libraries that receive grants from the federal
government to install software designed to protect minors from
accessing material harmful to them.315 The Court found that the
measure had little impact on adults because adults could request the
software be disabled.316 In contrast, the legislation proposed here
311. Edenfield v. Fane, 507 U.S. 761, 775 (1993) (citing Ohralik v. Ohio
State Bar Assoc., 436 U.S. 447 (1978)).
312. Kathryn C. Montgomery, Digital Kids: The New On-Line Children's
Consumer Culture, in HANDBOOK OF CHILDREN'S MEDIA, supra note 220, at
639-40, 643.
313. Calvert, supra note 124, at 355.
314. 539 U.S. 194(2003).
315. Id.
316. Id. at 209. In contrast, in Ashcroft v. Am. Civil Liberties Union, 542
U.S. 656, 701-02 (2004), the Court upheld a preliminary injunction against
496
[Vol. 39:447
imposes absolutely no restriction on media intended for adults or
primarily viewed by adults.
2. The Proposed Legislation Only Limits
Certain Forms of Advertising
On several occasions, the Court has noted that regulation of the
form of commercial speech is permitted. For example, the Virginia
Pharmacy Court observed that it may be appropriate to require
commercial messages to appear in such a form as is necessary to
the Court
prevent its being deceptive.117 Moreover, in other cases,
318
has emphasized its special concern with complete bans.
The proposed legislation would not prohibit all forms of
advertising to children. Rather, it would only prohibit certain forms
that are particularly deceptive and unfair. In other words, Kelloggs
remains free to advertise Pop-Tarts to children. It merely may not
market them to children through paid product placement or by using
SpongeBob or other popular children's characters to promote them.
3. Product Placement and Character Marketing
Lack Informational Value
The commercial speech cases make clear that the main purpose
of affording constitutional protection to commercial speech at all is
to ensure that the public has access to information.31 In contrast,
product placement and character marketing generally provide no real
information about the product, its characteristics, availability or
price. Thus, the case for protecting these forms of commercial
enforcement of the Children's Online Protection Act. The Court found that the
law would have a significant chilling effect on the speech available to adults,
and that filtering software was less of a speech restriction and a more effective
alternative for protecting minors. Id.
317. Va. State Bd, of Pharmacy v. Va. Citizens Consumer Council, 425 U.S.
748, 771 n.24 (1976).
318. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 562 (2001)
(expressing concern that regulations would constitute nearly a complete ban on
the communication of truthful information about smokeless tobacco and cigars
to adult consumers); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 502
(1996) (discussing "dangers that attend complete bans on truthful, nonmisleading commercial speech cannot be explained away").
319. See, e.g., 44 Liquormart,517 U.S. at 489 (discussing prices of liquor);
Rubin v. Coors Brewing Co., 514 U.S. 476, 484 (1995) (discussing alcohol
content of beer); Va. State Bd. of Pharmacy,453 U.S. at 754 (discussing prices
of prescription drugs).
May 2006)
speech is weak.
Moreover, there is no effective way to make product placement
or character marketing nonmisleading by requiring disclosures. In its
FTC Complaint, Commercial Alert asked the FTC to require product
placements be identified when they occur, as well as at the beginning
32
Z
of a program, and that such disclosure be clear and conspicuous.
While this may be an appropriate way to reduce the deceptiveness of
product placements for adults, it will not be effective for children.
Since, as discussed above, children under the age of seven generally
do not understand the persuasive intent of advertising, merely telling
them that the product placement is an advertisement will not
eliminate the unfairness. 32 1 Further, research shows that the FCC's
children's
analogous requirement of separation devices between
322
ineffective.
been
largely
has
commercials
and
programs
VI. WOULD THE LEGISLATION HELP REDUCE
THE PROBLEM OF JUNK-FOOD ADVERTISING?
Even if Congress were to pass such legislation, and the Court
were to uphold it, it would be fair to ask whether this legislation
would help solve the problem of childhood obesity, a matter that has
received so much attention lately and is the subject of this
symposium. In a report issued just as this Article was going to press,
the Institute of Medicine found that "[t]he commercial advertising
and marketing of foods and beverages influences the diets and health
of children and youth. 3 23 The report estimates that more than $10
billion per year is expended to market food, beverage and restaurant
products to children and youth.324 While "[t]elevision remains the
primary promotional vehicle for measured media marketing,.., a
shift is occurring toward unmeasured sales promotion, such as
marketing through product placement, character licensing, special
events, in-school activities, and advergames." 325 These findings lend
support to the claim that limiting product placements and character
320. Letter from Gary Ruskin, Executive Dir., Commercial Alert, to Marlene
H. Hortch, Sec'y, FCC (Sept. 30, 2003) (on file with Commercial Alert).
321. See supra note 222 and accompanying text.
322. WILCOX ET AL., supra note 219, at 6.
323. COMM. ON FOOD MKTG. & THE DIETS OF CHILDREN & YOUTH, supra
note 49, at 3.
324. Id. at 145.
325. Id. at 3.
[Vol. 39:447
marketing will address the problem of childhood obesity.
Nonetheless, at the FTC Workshop, Dr. Margo Wootan,
Director of Nutrition Policy at the Center for Science in the Public
Interest, argued that the problem is not so much that advertisements
are deceptive, but that the products advertised are most often for food
of poor nutritional quality. 326 She also pointed out that advertising
could be used to promote healthy food.32 '
The legislation proposed here would prohibit product placement
and character marketing to children regardless of the type of product
being marketed. Thus, for example, it would prohibit product
placements for Hot Wheels toys, Corvettes, and Victoria's Secret
clothing, as well as for Coca-Cola and Burger King products,
because the deceptiveness of the product placement does not depend
promoting products that
on the product being promoted. Deceptively
328
deceptive.
still
is
children
for
are good
The key reason for identifying deception as the harm caused by
product placement and character marketing, rather than as their
contribution to the obesity epidemic, is that legislation prohibiting
deceptive commercial speech is likely to survive constitutional
challenge. 329 Legislation prohibiting advertising of unhealthy food
products to children would not necessarily be found unconstitutional,
but would be a much harder case to make.
If the purpose of legislation is to suppress truthful nonmisleading speech to improve the health of children, the courts
would have to apply the last three prongs of the Central Hudson
326. See Margo Wootan, Dir. of Nutrition Policy, Ctr. for Sci. in the Pub.
Interest, Remarks at the FTC and Department of Health and Human Services
Workshop; Perspectives on Marketing: Self-Regulation and Childhood Obesity
78 (July 15, 2005) (transcript available at http://www.ftc.gov/bcp/workshops/
foodmarketingtokids/transcript_050715.pdf).
327. See id. at 52. In fact, one of the recommendations of the Institute of
Medicine is that licensed characters be used only for the promotion of foods
and beverages that support healthful diets for children. COMM. ON FOOD
MKTG. & THE DIETS OF CHILDREN & YOUTH, supranote 49, at 10.
328. Cf Advertising Council Request* for Declaratory Ruling or Waiver
Concerning Sponsorship Identification Rules, 17 F.C.C.R. 22,616, 22,621-22
(2002) (holding public disclosure required where the Office of National Drug
Control Policy pays for stations to run anti-drug public service announcements).
329. See supraPart V.
May 2006]
test.33 0
It should not, however, be difficult to show that the asserted
governmental interest is substantial. It is less clear whether the
courts would find that the regulation directly advances the
governmental interest asserted, and whether it is not more extensive
than necessary to!serve that interest.
In fact, the Chairman of the FTC emphasized that "[a]ny form of
government limitation on truthful commercial speech faces
significant constitutional hurdles.",33 1 She asserted that establishing
restrictions on food advertising to children to directly advance their
health would be "at best, a difficult undertaking." 332 Moreover, in
her view, it would be even more "difficult "to show that there are no
options to protect children's health that would not involve limiting
speech., 333 Commentators have generally noted that the Court's
review of nonmisleading commercial speech has moved closer to
strict scrutiny.334
Some Justices would like to see truthful
commercial speech afforded the same level of protection as other
forms of speech. For example, in his concurrence in Lorillard,
Justice Thomas argued for applying strict scrutiny. 335 He also
pointed out "that to uphold the Massachusetts tobacco regulations
would be to accept a line of reasoning that would permit restrictions
on advertising for a host of other products," citing as an example,
fast food advertisements targeting children. 336 Thus, legislation
prohibiting food advertising to children would require a substantial
amount of empirical support to be upheld.
330. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S.
557 (1980).
331. Majoras, supra note 153, at 9.
332. Id. at 10.
333. Id. Others have made similar arguments. See, e.g., Todd J. Zywicki et.
al., Obesity and Advertising Policy, 12 GEO. MASON L. REv. 979, 991-1003
(2004) (questioning' whether food advertising substantially contributes to obesity in children).
334. See, e.g., John M. Olin, Note, Making Sense of Hybrid Speech: A New
Model for Commercial Speech and Expressive Conduct, 118 HARV. L. REV.
2836, 2855 (2005) (discussing trend of the Court in applying strict scrutiny for
commercial speech regulations); Vladeck, supra note 209, at 1059 (discussing
the transformation of CentralHudson test).
335. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 575 (1980) (Thomas, J.,
concurring).
336. Id. at 587-88.
500
[Vol. 39:447
Because so many of the examples of product placement and
spokes-character marketing involve unhealthy foods, more limited
legislation restricting these deceptive forms of advertising could
significantly improve children's health. Moreover, the benefits from
prohibiting deceptive advertising far outweigh any benefits that
might result from using product placement or characters to market
healthy foods.
In response to public pressure, Nickelodeon's
SpongeBob SquarePants will soon star on spinach, carrot and fruit
bags in supermarkets. 337 While this will likely attract children to
these products, using the same character to promote both healthy and
338
unhealthy foods could be very confusing to children.
VII. CAN THE PROPOSED LEGISLATION
BE IMPLEMENTED EFFECTIVELY?
Even if the legislation is constitutional and would contribute to
solving the problem of childhood obesity, it would likely give rise to
practical objections. For example, how can one tell whether a
program, Web site, movie, or video game is targeted to or
viewed/used by significant numbers of children?
A. Line Drawing Problems
Determinations of whether a particular program, movie, Web
site or video game is intended for children or watched/visited/played
by substantial numbers of children are routinely made in a variety of
contexts. For example, most movies, television shows, and video
games have ratings for age appropriateness. These ratings are likely
to provide a good indication as to whether a substantial number of
children will view the film, program or game. Demographic data
regarding viewers of television programs and magazine readers is
routinely collected and made available to advertisers. Moreover,
food companies
design certain food products to specifically appeal to
33 9
children.
337. Therese Howard, Food Marketers Hope Veggies Look Fun to Kids,
USA TODAY, July 15, 2005, at 5B, available at http://www.usatoday.com/
money/industries/food/2005-07-14-obesity-usatx.htm.
338. Of course, program producers will be free to feature health foods in
programming so long as they are not paid to do so.
339. An example is Pepperidge Farm's co-branded Nickelodeon slime
goldfish that, when eaten, color one's tongue green. Jennifer Brizzi, Hued
Food, ULSTER PUBL'G, May 6, 2005, http://www.ulsterpublishing.com/
May 2006]
Certain cable networks, such as Nickelodeon and Cartoon
Network, target younger viewers. Additionally, major broadcast
networks devote certain time periods, primarily Saturday mornings,
For purposes of its advertising
to children's programming.
restrictions, the FCC defines children's programs as "programs
originally produced and broadcast primarily for an audience of
children 12 years old and younger." 34° Neither the FCC nor the
entities covered by its regulations appear to have difficulty
34
determining which programs are included within this definition. 1
CARU also seems to be able to determine what constitutes
children's advertising without much difficulty. CARU Guidelines
"apply to advertising addressed to children under twelve years of age
in all media, including print, broadcast and cable television, radio,
342
video, point-of-sale and online advertising and packaging."
CARU takes the position that it "should scrutinize children's
advertising wherever it appears... without reference to program
content, form or day-part.",34 3 It considers any commercial that is
directed toward children or for a children's product to come within
its purview, but allows advertisers to provide demographics to verify
344
that children do not constitute a significant part of the audience.
index.cfm?fuseaction=article&articlelD=343373. Moreover, the Institute of
Medicine found that new food and beverage products targeting children, as
well as children's ,ersions of classic products, have proliferated in recent
years. COMM. ON FOOD MKTG. & THE DIETS OF CHILDREN & YOUTH, supra
note 49, at 132-40.
340. 47 C.F.R. § 73.670 n.2 (2004).
341. See Policies and Rules Concerning Children's Television Programming,
6 F.C.C.R. 2111, 2112 (1991) (finding FCC definition of children's programs
well-established and supported by the majority of commenting parties).
342. CHILDREN'S ADVER. REVIEW UNIT, supra note 114, at 4.
343. CHILDREN'S ADVER. REVIEW UNIT, CHILDREN'S ADVERTISING
IN
TODAY'S MEDIA MARKET (2005), http://www.caru.org/news/todaymkt.asp.
344. Id. At the FTC Workshop, CARU Director Elizabeth Lascoutx explained that CARU had an "internal working rule that-which we've borrowed
from other industry codes, that if there is a 35 percent under 12 demographic in
programming before 9:00 at night, we will look at it and consider it within our
purview." Elizabeth Lascoutx, Dir., Children's Adver. Review Unit, Remarks
at the FTC and Department of Health and Human Services Workshop: Perspectives on Marketing: Self-Regulation and Childhood Obesity 68 (July 15,
2005) (transcript available at http://www.ftc.gov/bcp/workshops/foodmarket
ingtokids/transcript_050715.pdf).
[Vol. 39:447
Similarly, the FTC has had no significant problems determining
whether Web sites are directed to children in its implementation of
the Children's Online Privacy Protection Act (COPPA). This Act
restricts the collection and use of personal information on Web sites
or online services directed towards children. 345 A "website or online
service directed to children" is a commercial Web site or online
service, or portion thereof, "that is targeted to children." 346 In
determining whether a Web site is targeted to children, the
Commission considers
its subject matter, visual or audio content, age of models,
language or other characteristics of the website or online
service, as well as whether advertising promoting or
appearing on the website or online service is directed to
children. The Commission will also consider competent
and reliable empirical evidence regarding audience
composition; evidence regarding the intended audience; and
characters and/or childwhether a site uses animated 347
incentives.
and
activities
oriented
The FTC recently requested comment on the adequacy of this
definition, 348 and Nickelodeon and other companies responded that
the factors used by the FTC were clear and appropriate. 349 These
examples suggest that the line drawing problems inherent in
legislation of this type are surmountable.
345. Children's Online Privacy Protection Act of 1998, 15 U.S.C. §§ 65016506 (2000).
346. Id. § 6501(10).
347. 16 C.F.R. § 312.2 (2004).
348. As required by COPPA, the FTC recently began a review of the
effectiveness of the law and its rules. Among other things, it sought comment
on whether its definitions were clear and appropriate. Children's Online
Privacy Protection Rule: Request for Comments, 70 Fed. Reg. 21,107, 21,109
(Apr. 22, 2005) (to be codified at 16 C.F.R. pt. 312).
349. See Comments of Nickelodeon to FTC on Children's Online Privacy
Protection Rule at 9, FTC File No. P054505 (June 27, 2005), available at
http://www.ftc.gov/os/comments/COPPArulereview/516296-00018.pdf; Comments of Time Warner Inc. to FTC Children's Online Privacy Protection Rule
at 4-5, FTC File No. P054505 (June 27, 2005), available at http://www.ftc.
gov/os/Comments/COPPArulereview/516296-00019.pdf.
May 2006]
B. Experience in Other Countries
Further support for the feasibility of the proposed legislation
may be found in the fact that many other countries limit advertising
to children, prohibit product placement, and/or restrict character
marketing to children.
A survey conducted by the World Health Organization (WHO)
found that sixty-two of seventy-three countries reviewed had some
form of regulation (defined broadly to include self-regulation) of
television advertising that specifically referred to children. 350 Some,
such as Sweden,: Norway, and Quebec, Canada, ban all television
advertising targeted at children. 35 1 Many other countries do not
allow children's programs352to be interrupted by advertising or have
other types of restrictions.
In addition, the survey found that twenty-three countries had
"some form of statutory regulation on product placement." 353 It
found that, "[r]egulations on product placement typically take one of
several forms, including outright bans on product placement and on
'surreptitious advertising' (i.e., hidden advertising that might mislead
the public); strong discouragement of product placement, 'indirect
advertising' or 'non-regular' advertising; time restrictions; and
guidelines on the use of placed products." 354 Austria, Belgium
(Flemish community), Ireland, Norway and the United Kingdom
explicitly ban product placement, while the Czech Republic,
Denmark, Germany, Italy, Switzerland and others interpret the ban
on surreptitious advertising to restrict product placement.
350. CORINNA HAWKES, WHO MARKETING FOOD TO CHILDREN: THE
GLOBAL REGULATORY ENVIRONMENT 14 (WHO 2004), available at
http://whqlibdoc.who.int/publications/2004/9241591579.pdf.
351. Id. at 15-16 tbl.3, 19.
352. See, e.g., id. at 19 tbl.4 (summarizing timing and content restriction in
selected European countries), 22-23 (noting that Australia "prohibit[s]
advertising during program[s] aimed at pre-school age children, restrict[s] the
amount of advertising during programming for primary school-age children,
and limit[s] the repetition of advertisements"). For a summary of the regulations in the eighteen members of the EU, see EUROPEAN COMM'N, STUDY ON
THE IMPACT OF ADVERTISING AND TELESHOPPING ON MINORS: SUMMARIES,
available at http://www.europa.eu.int/comm/avpolicy/stat/studpdf/pubsumen
.pdf (last visited Nov. 1, 2005).
353. HAWKES, supra note 350, at 45.
354. Id.
355. Id. at 46 tbl. 10. Hawkes notes that regulations regarding product place-
[Vol. 39:447
Likewise, several countries limit character selling to children.
The United Kingdom prohibits children's television personalities
from appearing in any advertisements before 9:00 p.m., and prohibits
advertisements for merchandise based on children's programs during
356
the two hours before and after broadcast of the relevant program.
In addition, the British Broadcasting Corporation recently decided to
stop licensing the use of its popular children's television characters
such as7 the Teletubbies in connection with fatty or sugary snack
foods.
35
Several Scandinavian countries also restrict character marketing.
Finland prohibits advertisements in which sales pitches are delivered
by familiar cartoon characters or children. 35
In Denmark, an
executive order implementing the Television Without Frontiers
Directive prohibits characters and puppets from children's programs
from appearing in advertisements for products of particular interest
to children.359 Norway also prohibits advertisements that star people
or characters from children's programs. 360 The fact that so many
countries restrict product placement and character marketing
suggests that legislation in the United States would be workable.
VIII. CONCLUSION
At a time when product placement and popular children's
characters are increasingly being used to market unhealthy food
products to children, limiting these techniques with regard to
children could significantly prevent childhood obesity. Legislation
restricting product placement in children's media, and prohibiting the
use of popular children's characters from being used to market
unrelated products to children, is workable and would likely be
found constitutional by the Supreme Court. There is ample evidence
ment are "especially open to the vagaries of interpretation." Id. box 16. She
cites, as an example, Austria which prohibits product placement in all children's programs and on public broadcasting programs, but not in television
series. Id.
1
356. Id. at 19, tbl.4.
357. Emma Ross, BBC to Phase Out Cartoon Character Licenses for Junk
Food, SAN DIEGO UNION-TRIBUNE, Apr. 5, 2004, available at http://www.sign
onsandiego.com/news/health/20040405-0907-cartoonjunkfood.html.
358. HAWKES, supra note 350, at 19 tbl.4.
359. EUROPEAN COMM'N, supra note 352, at 12.
360. Id. at 5O.
May 2006]
505
to show under the first prong of the Central Hudson test that these
forms of advertising, when directed at children, are deceptive and
unfair, while having minimal impact on the speech available to
adults.
506
[Vol. 39:447

Restricting the Marketing of Junk Food to Children by Product

Transcription

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